individual liberty essay

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Published: 14 August 2018

Individual liberty and the importance of the concept of the people

Regina Queiroz 1

Palgrave Communications volume 4 , Article number: 99 ( 2018 ) Cite this article

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Politics and international relations

Through publically agreed laws that correspond to a common set of public restrictions, the ‘people as a sovereign body’ serves to protect against violations of individual liberty and despotic power. Where no such common body exists, individuals are deprived of this protection. In such cases, individuals must obey without liberty, while those in power command under a state of license. Neoliberal theorists maintain that any common personality, with its corresponding set of public and arbitrary positive and negative restrictions on liberty, undermines individual liberty. Neoliberal theory only allows for private restrictions on liberty. Against these neoliberal assumptions, we argue that rejecting public restrictions on liberty does not promote individual liberty. To the contrary, it creates conditions in which free individuals become servile and political inequality becomes entrenched, where citizens are divided into those who obey and those who command. Tracing the consequences of neoliberalism, we argue that unless we take seriously both the people as a political category and the right to equal and reciprocal coercion, individual liberty will be at risk. The article argues that neoliberalism ultimately leads to the total exclusion of certain citizens under the veil of full liberty . With the vanishing of the people’s will comes the utter disappearance of certain citizens , who live in a spontaneous society as if they were stateless or lawless persons. To better understand the connections between the rejection of the concept of the people, private restrictions on liberty and the fostering of the servile citizen, this paper considers the political philosophy of Hayek and Nozick. It also considers key ideas from Locke and Kant—theorists who, despite the differences between their philosophical perspectives, and despite the fact that they both provided crucial inspiration for Hayek’s political economy and Nozick’s libertarianism, stressed the protective role of the people with regard to individual liberty.

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Against this neoliberal assumption (Hayek, 1976 ; Nozick, 1974 ), we shall argue that rejecting the concept of the people and public restrictions on liberty while preserving the general law, its protective function, and coercive institutions and instruments for enforcing neoliberal law poses a serious threat to individual liberty and ultimately risks reducing the majority of free individuals to servile—and in some cases lawless—persons.

The literature has already demonstrated the incompatibility between neoliberalism and the notion of the people as a political category and reality (Brown, 2015 ; Dean, 2008 ). The impact of neoliberalism’s exclusion of the people and its reliance on the concept of publicity without a public has also been demonstrated (Queiroz, 2017 ). Related to this, the literature has addressed how neoliberalism fosters the development of a docile and disciplined citizenry (Foucault, 2008 ). Nonetheless, the political consequences of the exclusion of the people and the protective role it plays in the preservation of the political state—namely the transformation of free individuals into servile, and ultimately lawless, persons—has yet to be addressed, in particular from a political-philosophical point of view.

The importance of this issue is clear. There has been much emphasis on the economic nature of neoliberalism, which has obscured the fact that, more than an economic position, neoliberalism is a political outlook and reality (Bruff, 2014 ). Although neoliberalism has become deeply tied to economics (Hall, 2011 ; Read, 2009 ), this is mainly due to the fact that its theoretical understanding of the state as a political institution is made in analogy with the economic market and the subsequent political redefinition of the latter’s aims and scope (Foucault, 2008 ). Thus, without neglecting the significance of neoliberal economic analysis, in shifting the focus to neoliberalism’s political character we aim to disclose its political-philosophical foundations and to translate its allegedly purely economic aspects to the political sphere. As we will see, the imposition of fiscal equilibrium, fiscal consolidation, cuts to social security, the privatization of public property, the liberalization of collective bargaining, and the shrinking of pensions (Barro, 2009 ) are connected not only to the rise of poverty and inequality but also to the transformation of free citizens into dependent and servile persons.

The underlying philosophical principles formulated in Hayek’s political economy, political philosophy and legal theory, as well as in Nozick’s libertarianism, have spilled over into politics. Although, as empirical studies frequently show, there is always a gap between theoretical statements and practical reality, these principles now provide, at a national and international level, the law’s substantive content (Brown, 2015 ; Gill, 1998 ; Hall, 2011 ; Klein, 2007 ; Overbeek, 1993 ).

For these reasons, we do not intend to evaluate the “exegetical” value of Hayek’s and Nozick’s philosophical views (for example Hayek’s mistaken reading of Kant’s ethical and political philosophy; Gray, 1989 ). At the same time, we cannot here explore the important material basis of neoliberal ideology, namely concrete neoliberal activities, processes and powerful neoliberal social and political forces, such as multinational corporations (Brown, 2015 ; Gill, 1998 ; Hall, 2011 ; Harvey, 2005 ; Klein, 2007 ; Overbeek, 1993 ). Instead, we aim to show that the philosophical assumptions underlying Hayek’s political economy and Nozick’s libertarianism allow us to clarify the connection between the exclusion of the people as a political category and neoliberalism’s promotion of a servile citizenry.

To better understand this connection, this paper will consider the Lockean and Kantian concepts of the people. Despite the differences between Locke’s and Kant’s political philosophies (Gray, 1989 ; Williams, 1994 ), for both thinkers the people serves the function of protecting individual liberty against despotic power, a condition which is commonly referred to as political obligation under liberty. Hayek and Nozick explicitly refer to the Lockean and Kantian foundations of their views, for example the Kantian universalization test for establishing the validity of the abstract rules of the market state (Hayek, 1976 ). Nozick’s use of the Kantian understanding of the person as an end in itself to justify the rejection of substantive principles of justice (Nozick, 1974 ) provides an additional reason to consider Locke’s and Kant’s conceptions of the people in detail.

There are of course important differences between our current social, political and technological context, which is characterized by globalization, and Locke and Kant’s modern nation states. We ought also to consider the differences between how we conceive of the people, e.g., whether we define peoples in terms of national commonality (Miller, 2000 ) or whether we ought to stress the role of democratic politics in creating this sense of political belonging (Habermas, 2008 ). Equally significant is the fact that, contrary to neoliberalism, Locke’s liberalism depends on homo politicus and juridicus rather than homo economicus , which generates significant tensions between his rights-based view and modern views based on interests (Foucault, 2008 ). Equally, we wish to overlook neither Locke’s and Kant’s controversial statements and practices, for example Kant’s exclusion of non-property-owners from the social contract (Kersting, 1992 ), nor the limits of Locke’s and Kant’s theoretical constructions of political personality (Badiou, 2016 ). The weaknesses of past democracies, expressed in the exclusion of woman from equal citizenship, the existence of slavery, and contemporary populist perversions of democracy, do not entail that we must abandon the ideal of democratic political power, however. The negative aspects of Locke’s and Kant’s political philosophies should not erase their strong commitment, from a liberal perspective, to the importance of the concept of the people when it comes to protecting individual liberty.

Finally, we do not wish to ignore past conceptions of the people, such as Greco-Roman conceptions, republican conceptions (Cicero, 1999 ; Habermas, 2000 ; Rousseau, 1762 (1964)), Marxist conceptions (Badiou, 2016 ), and other current alternatives. Despite their differences, they share certain features with the liberal approach, such as assigning a protective role to the people. In the face of the political consequences of neoliberalism’s exclusion of the people, we should appeal to what Rawls ( 1993 ) calls overlapping consensus, i.e., agreement on the people as a political category on different grounds.

The paper is organized as follows. Section 1 provides a brief presentation of the main concepts and neoliberalism’s rejection of public restrictions on liberty and the right to equal and reciprocal coercion. In the second section, we show that, contrary to neoliberal assumptions, far from fostering individual liberty, the exclusively private restriction of liberty implies a political distinction between those who obey and those who rule. It also entails the division of citizens into those who obey and those who command, where the latter are given unequal protection by the government and thus an unequal share in the public coercive power. Similarly, it involves the introduction of two familiar political categories, originally deployed in neoliberal political society: self-serfdom on the one hand and invisible, voiceless citizenship on the other. At the end of the paper, we provide a brief account of the protective role of the people as a political body when it comes to individual liberty. We show that by ensuring the equal and reciprocal right of coercion, the people as a body protects individual liberty.

The people vs. the private coercion of liberty under neoliberalism

As an imprecise and nebulous concept, there is no single “pure” form of neoliberalism. Instead, there are varied articulations that make up an extraordinarily messy amalgam of neoliberal ideas and policies at multiple sites (Latin America, Europe, China; Harvey, 2005 ), on multiple scales (national, international, transnational, global; Brown, 2015 ; Hall, 2011 ; Klein, 2007 ; Overbeek, 1993 ), and within the many versions of the welfare state (Kus, 2006 ). Additionally, according to England and Ward’s ( 2016 ) taxonomy, neoliberalism can be thought of as a form of statecraft that promotes the reduction of government spending while increasing economic completion (Mudge, 2008 ), or as a form of governmentality that comprises social, cultural and economic practices that constitute new spaces and subjects (Foucault, 2008 ). In addition, neoliberalism can be seen as a reaction to the disenchantment identified by Weber, ( 1978 ) following the rise of bureaucracy. Neoliberalism expresses a kind of re-enchantment with the exclusively individual rational actor, who claims a non-alienable space of liberty against a bureaucratic “iron cage”. Although some see neoliberalism as a privatized version of economic and bureaucratic despotism (Lorenz, 2012 ) or as a totalizing global bureaucracy (Hickel, 2016 ), this re-enchantment can explain the enthusiastic endorsement of neoliberal principles by a wide spectrum of political and ideological forces, for example by the Labour party under Blair in Great Britain, the SPD under Schröder in Germany, and followers of Pinochet in Chile.

Finally, neoliberalism has been viewed as a conception of the world, or a “total view of reality” (Ramey, 2015 , p. 3), which is meant to be applied to the political realm and the entirety of human existence. Integrated into common sense, its main ideas stem from the everyday experience of buying and selling commodities on the market, a model that is then transferred to society. As a total view of reality, neoliberalism entails “a new understanding of human nature and social existence [and] the way in which human beings make themselves and are made subjects” (Read, 2009 , p. 28; see also Foucault, 2008 ).

While acknowledging the disparate criteria for defining and assessing neoliberal theory and practice, we maintain that neoliberalism is a political outlook and reality (Bruff, 2014 ) which has evolved in part in accordance with the framework of the theoretical premises of Hayek’s, ( 1976 ) political economy and Nozick’s, ( 1974 ) philosophical libertarianism. For instance, neoliberal theoretical principles now provide, at a national and international level, substantive content to political constitutions (McCluskey, 2003 ), the establishment of laws governing the executive (Foucault, 2008 ; Read, 2009 ), and the reformulation of laws governing citizens (LeBaron, 2008 ; McCluskey, 2003 ; Supiot, 2013 , p. 141; Wacquant, 1999 ). They also shape our comprehension of the world and ourselves (for example the reduction of the citizen to an entrepreneur; Peters, 2016 ). Thus, although there is no purely neoliberal society or state—neoliberalism evolves within various societies in different ways (see Harvey, 2005 )—neoliberal political theory allows us to clarify the political premises that underlie the disparate versions of neoliberalism.

In preserving the political state, neoliberal individualistic premises do not accommodate the notion of the people , i.e., the citizens of a given political community or a unitary political body ( demos or populus ), understood as an ultimate intentional lawmaker or sovereign (Locke, 1679 (1960)). The category of the people is a political criterion, which refers to the main act of the people’s sovereignty: their giving law to themselves, in the form of rights and duties (Locke, 1679 (1960); Kant, 1793 (1977); Rousseau, 1762 (1964); Sieyes, 1789 (1989)). Putting to the side the relationship between political (Dahl, 1998 ; Rawls, 1999 ; Sieyes, 1789 [1989]) and ethnic (Habermas, 2000 , 2008 ) criteria, this act unifies individuals who belong to different ethnicities, cultures, and linguistic traditions. The results of this act are the civic, political and social human rights which have traditionally been the privileged content of the laws of peoples (Locke, 1679 (1960); Kant, 1793 (1977); Marshall, 1950 ; Rawls, 1971 , 1999 ).

It is true that women and slaves have historically been excluded from the category of the people. It is also undeniable that such exclusion has not been completely overcome and that new categories of exclusion have emerged, such as ageism and digital exclusion. Important political differences within peoples on the axes of class (Badiou, 2016 ), gender (Elstain, 1981 ), race (Wilson, 2012 ), and citizenship remain. Nonetheless, the content of the laws of peoples has provided political criteria for denouncing and reducing, if not eliminating, these exclusions (e.g., in South Africa with the end of Apartheid).

Despite the complexity of the relationship between the state and the sovereignty of the people (Habermas, 2008 ), the political criterion stresses the subordination of the state to the sovereign people. It also points to the reformulation of the powers of states, “specifying that their legislators must not make certain laws, or must advance certain objectives” (Pyke, 2001 , p. 205). For example, instead of exclusively preserving peace or economic and financial efficiency, states ought to ensure the well-being of their citizens. In the absence of such restrictions, the overestimation of states’ economic goals (such as low inflation, the removal of trade barriers and foreign currency control, and minimal regulation of the economic labor market) can result in the undermining of welfare at the national (Brodie, 2007 ) and international level (Beck, 2002 ).

Some argue that nation states provide a criterion for determining political belonging (Miller, 2000 ). However, the political criterion points to the fact that one’s relation to a given nation state should be based on common laws, not ethnic or cultural differences. Rawls’s, ( 1999 ) liberal approach to international relationships argues against cosmopolitan principles of justice that are blind to the political (and moral) differences between peoples, for example the difference between liberal and decent peoples, where the former is based on an individualistic tradition and the latter on a ‘corporative’ tradition. Despite the perils of extending sovereign power to the global order (e.g., populism) and people’s incomprehension of the full import of economic and political factors, this order should respect the sovereignty of peoples. Neoliberalism’s “global policy of boundary removal” (Beck, 2002 , p. 78) undermines the sovereignty of the people (Beck, 2002 ; Overbeek, 1993 ). Indeed, the growth of international law affects domestic legal systems, limiting the political choices of legislators and voters, and competition in globalized markets does not allow nations or states to regulate their industries and workplaces. As Hickel notes, for example, financial liberalization creates conditions under which “investors can conduct moment-by-moment referendums on decisions made by voters and governments around the world, bestowing their favor on countries that facilitate profit maximization while punishing those that prioritize other concerns, like decent wages” (Hickel, 2016 , p. 147).

Peoples are the main ‘actors’ in the international and global arena, their sovereignty, along with their constitutional power, cannot dispense with common laws. Despite the crucial issue of the existence of mechanisms for enforcing those laws, human rights such as freedom from slavery and serfdom, mass murder and genocide can provide their content (Rawls, 1999 ). Although the political manipulation of the law by national-hegemonic principles (Beck, 2002 ) and the enforcement issue (Lane, et al. 2006 ) must be kept in mind, the human rights approach is relevant to Locke’s and Kant’s concepts of the people. There is a difference between the national order underlying Locke’s and Kant’s approaches to the sovereignty of the people and our contemporary international and global order, human rights can create, at the national, international and global level, a sense of political belonging (Habermas, 2008 ; Lane et al. 2006 ; Rawls, 1999 ). As political criteria, human rights preclude resolving persistent political conflicts on the basis of ethnic or national criteria, as occurs with populism and nationalism, respectively.

Given this intricate theoretical framework, as well as the complexity of the notion of a sovereign people (Butler, 2016 ; Morgan, 1988 ; Morris, 2000 ), we stress that whatever its scope, the sovereign people plays a protective role with regard to citizens’ liberties in general and against despotic power in particular (Locke, 1679 (1960); Kant, 1793 (1977)). Locke, ( 1679 (1960)) and Kant, ( 1793 ([1977)) assume that the sovereign people guarantees individual liberty in any human association. Both thinkers hold both that human associations (or societies) of free persons cannot deny the political facts of power, obedience and command (Locke, 1679 ([1960); Kant, 1793 (1977)) and that, in natural (rather than political) conditions, individual liberty is unrestricted. Since in the state of nature it is possible for one to obey unconditionally, having only duties, while the other in turn commands unconditionally, having only rights, the unrestrictedly obedient enjoy no protection against unrestricted power, at least concerning their right to life (Locke, 1679 ([1960); Kant, 1793 (1977)). From this perspective, i.e., from the perspective of individual liberty, the practical (as opposed to theoretical) challenge consists in conceiving of an alliance between individuals that does not undermine their individual liberty. The people as a political body expresses precisely this alliance: an inter-protective construction that replaces the state of unconditional obedience and command.

Following the controversial model of the contractual act (Gough, 1957 ), individuals transfer to the political power their unrestricted natural right to liberty. This transfer transforms them into “one people, one body politic” (Locke, 1679 (1960), II, p. 89). As members of the people, individuals equally consent to restricting their liberty under a political order and to preserving an equal coercive power, which prevents them from being reduced to servile persons and, correlatively, prevents any one of their numbers from becoming a despotic lord (Locke, 1679 (1960); Kant, 1793 (1977)). As such, they establish public law —a system of laws for a people, i.e., an aggregate of human beings, or an aggregate of peoples (Kant, 1793 (1977))—which allows them to live in a lawful state.

Through public law, i.e., laws based on their will, the people provides to each individual a unique set of liberties with regard to the use of material goods and imposes on each a unique set of restrictions (Locke, 1679 (1960); Kant, 1793 (1977)). When pursuing their personal well-being, as members of the people, individuals cannot ignore this common set of rights and restrictions. When pursuing their well-being, individuals are also, but not exclusively, bound to demands that are independent of their individual interests.

Public vs. private law

Neoliberal theory and practice does not preclude a common law (Buchanan and Tullock, 1962 ; Hayek, 1976 ). The common law that it involves is not, however, a law of the people that provides liberties (rights) and imposes a unique set of restrictions (Buchanan and Tullock, 1962 ; Hayek, 1976 ; Nozick, 1974 ). Indeed, neoliberal political theory does not allow for the transformation of individual personalities or isolated natural selves into a collective or single public, viewed as the ultimate intentional lawmaker, which is the model we find, for example, in Locke, ( 1679 (1960)), Kant, ( 1793 (1977)), and Rawls, ( 1971 ). In Nozick’s political theory, when private persons establish a contract to govern their use of the possessions over which they have a private right (Nozick, 1974 )—this conception of rights includes both material possessions and natural talents—they are always separate units that remain separate even when they form associations (Nozick, 1974 ). They do not constitute a common person subject to common legislation that defines and regulates political authority and applies equally to all persons. This mirrors Hayek’s suggestion that it is absurd to speak of rights as claims which no one has an obligation to obey, or even to exercise (Hayek, 1976 ). On this view, human rights result from personal interests, and persons cannot be bound to claims that are independent of their private interests. These claims presuppose a public obligation (or the possibility of coercion), which involves a political organization in which decision-makers act as collective agents: as members of a people rather than individuals. Yet on the neoliberal conception, collective deliberation of this sort limits, and even undermines, individual liberty (Buchanan and Tullock, 1962 ; Hayek, 1976 ; Nozick, 1974 ), leading to oppression (Buchanan and Tullock, 1962 ), if not to serfdom (Hayek, 1960 ).

Viewed from the neoliberal standpoint as a meaningless or mystical political category (Buchanan and Tullock, 1962 )—“a fairy tale” (Hayek, 1960 , p. 35)—the political deliberation of the people imposes obligations on individuals, undermining their liberty and well-being. The people as a political body is based on the supposition that someone (the people) can intentionally prevent or promote certain results, which, via end-rules, guiding organizations can compel individuals to attain. In addition to their “epistemological impossibility” (Gray, 1993 , p. 38), however—individuals’ multiple interactions produce unpredictable and unforeseen results—end-rules interfere with individual liberty and worsen the positions of all (Hayek, 1976 ), in particular those who are better off (Nozick, 1974 ). Interference (or intervention), which is “by definition an […] act of coercion” (Hayek, 1976 , p. 129), is “properly applied to specific orders [that aim] at particular results” (Hayek, 1976 , p. 128). Moreover, interference and intervention occurs “if we changed the position of any particular part in a manner which is not in accord with the general principle of its operation” (Hayek, 1976 , p. 128).

The general principle of the operation of the spontaneous society is negative liberty, or “the absence of a particular obstacle—coercion by other men” (Hayek, 1960 , p. 18) in one’s pursuit of maximal individual well-being. Requiring that the situation of the less well off be improved via the principle of the equality of opportunity, for example, involves restricting individual liberty in order to improve the situations of others (Hayek, 1960 , 1976 ; Nozick, 1974 ). This improvement is thought to be unacceptable because, in addition to presupposing that we can determine the circumstances under which individuals pursue their aims, binding persons to claims that are independent of their private interests constitutes an interference in their liberty (Hayek, 1976 ). Even if it is admitted that the principle of equal opportunity entails neither complete control over the circumstances in which individuals pursue their well-being (Rawls, 1971 ), nor equality of results (Rawls, 1971 ), nor the worsening of the position of the better-off (see Rawls’s principle of difference, Rawls, 1971 ), the fact that it involves changing the positions of individuals via a public rule means that it constitutes the imposition of an illegitimate obligation on individuals (Hayek, 1960 ; 1976 ; Nozick, 1974 ). The public law limits the overall sum of well-being—the greater the privatization, the greater the well-being—and restricts the unlimited intensification of individuals’ purely private interests (see Hayek’s, ( 1976 ) and Nozick’s, ( 1974 ) criticism of the utilitarian and Rawlsian theories of social justice). “Inconsistent” (Hayek, 1976 , p. 129) with individual liberties from the perspective of negative liberty and with the unlimited intensification of individuals’ purely private interests, public rules are transformed into private rules (commands or end-rules).

On the neoliberal view, the pursuit of individual ends ought to be based on historical principles (Nozick, 1974 ) or Hayek’s abstract rules, which only set out the procedures for acquiring and preserving individual well-being and which do not refer to a common purpose, such as social justice: “Freedom under the law rests on the contention that when we obey laws, in the sense of general abstract rules irrespective of their application to us; we are not subject to another man’s will and are therefore free” (Hayek, 1960 , p. 11). Under this negative conception of liberty, abstract rules allow for the improvement of “ the chances of all in the pursuit of their aims”; they are therefore truly public rules :

To regard only the public law as serving general welfare and the private law as protecting only the selfish interests of the individuals would be a complete inversion of the truth: it is an error to believe that only actions, which deliberately aim at common purposes, serve common needs. The fact is rather that what the spontaneous order of society provides for us is more important for everyone, and therefore for the general welfare, than most of the particular services which the organization of government can provide, excepting only the security provided by the enforcement of the rules of just conduct . (Hayek, 1960 , p. 132 emphasis added).

Neoliberal “public” rules are therefore abstract rules that exclude common concern . Organizations “sanction” the rights resulting from individuals’ interactions under abstract rules (Hayek, 1976 ). This means not only that governments ought to mirror that order—they cannot provide any rights of themselves—but also that the judicial system ought to be redesigned to fit with the Great Society. Indeed, Hayek critiques the enslavement of law by “false economics” (Hayek, 1960 , p. 67), i.e., economics that are dependent on the existence of public goods, and “prophetically” foresees the disappearance of this law in the spontaneous society (Hayek, 1960 ). Other neoliberal theorists have conceived of the neoliberal impact on law in similar terms, envisaging a legal system based on “true neoliberal economics”, which transforms the law into a bond “oblig[ing] one party to behave according to the expectations of the other” (Supiot, 2013 , p. 141; see also LeBaron, 2008 ; McCluskey, 2003 ; Wacquant, 1999 ).

This model cannot accommodate the idea of a public person, the people, to whom individuals belong; indeed, the role of ultimate intentional lawmaker is taken from the people and given to the spontaneous order , the Great or Open Society. Understood in analogy with the economic market, and equating to abstract rules applied to “an unknown number of future instances” (Hayek, 1976 : 35), this spontaneous order constitutes the sovereign lawmaker (Queiroz, 2017 ).

Neoliberal political intervention under private law

Under the negative conception of liberty, individual freedom is compatible with impediments and constraints (liberty is not bare license, which ultimately undermines negative liberty; Berlin, 1958 ). Abstract rules allow for private restrictions on liberty, and neoliberal governmental organizations ought to ensure that any restrictions on liberty are limited to the private realm. Neoliberal theorists do not understand this protection as a form of intervention or interference, however. Hayek, ( 1960 ), for example, argues for this notion by establishing a distinction between repairing and intervening. When a person oils a clock, they are merely repairing it, securing the conditions required for its proper functioning. In turn, when a person changes “the position of any particular part in a manner which is not in accord with the general principle of its operation” (Hayek, 1976 , p. 128), for example by shifting the clock’s hands, this counts as intervention or interference. In other words, just as oiling a clock provides the conditions required for its proper functioning, so governmental protection of the private scope of restrictions on liberty allows for the proper functioning of the Great Society. Both merely create the conditions under which individual wellbeing can be maintained, if not increased. In turn, just as shifting the hands of a clock is not in accord with the general principle of the clock’s operation, public rules, which impose illegitimate obligations on individuals, constitute an intervention into the functioning of the spontaneous society.

When establishing the particular character of organizations’ rules, and excluding “the security provided by the enforcement of the rules of the just conduct” (Hayek, 1960 , p. 132), this enforcement means that neoliberal politicians intentionally intervene, but only to prevent the auto-destruction of the “mechanism” itself. They permanently adjust the rules to the neoliberal common law.

Consider a situation in which two people, A and B, are involved in cooperative activity and in which both establish a common rule to safeguard the maximization of their interests. Under this rule, A and B both contribute to the maximization of their own well-being. Although it accepts the interdependence of individuals when pursuing their personal well-being, neoliberal reparation does not allow for a common right to the results of that cooperative interdependence (Hayek, 1976 ; Nozick, 1974 ). In denying the existence of a public person, a public will, and in ultimately challenging the idea that there is a common right to a share in the total well-being that results from the contributions of all, neoliberalism not only allows, but also requires , that one party has a claim to the exclusively private enjoyment of the benefits of their mutual relationship. Accordingly, neoliberal repair (a metaphor for neoliberal government) ought to remove public law, which allows for the common right to well-being, and should replace it with private law. In this way, the proper functioning of the Great Society—which permits the unrestricted preservation and increasing of individuals’ private wellbeing—can be reestablished. The resulting intensification of poverty and inequality (Greer, 2014 ; Matsaganis and Leventi 2014; Stiglitz, 2013 ), the diminishing security of employment and income (Clayton and Pontusson, 1998 ; Stiglitz, 2013 ), and growing authoritarianism (Brown, 2015 ; Bruff, 2014 ; Kreuder-Sonnen and Zangl, 2015 ; Orphanides, 2014 ; Schmidt and Thatcher, 2014 ) are not problems in themselves. To the contrary, to the extent that it undermines individual liberty, any attempt to redress these effects violates the law of the neoliberal state, which, Hayek would say, is based on “true economics”. Accordingly, when choosing between the intensification of poverty and inequality and allegiance to the right of non-interference, non-interference must prevail, thus preventing political and social action to reduce (or compensate for) poverty and inequality. Notwithstanding the underlying theoretical debate on the legitimacy and justice of the acquisition of private rights (Hayek, 1976 ; Marx, 2000 ; Nozick, 1974 ; Rawls, 1971 , 1993 ), enforcing the rules of the Open Society deprives one part of that society of the right to their well-being and to their contribution to the general well-being . Under the neoliberal model of government and law, certain citizens are deprived of the right to enjoy the public goods that result from their collective activity, while others enjoy a private right to goods that result from the contribution of all. Since those who benefit are not able to acknowledge the contribution of others, they erase it and privatize the public law. This privatization shows that the neoliberal trinity of privatization, flexibilization and deregulation ultimately results from the original privatization of the public or common law .

Private restrictions on liberty and coercive positive liberty

Aside from the controversy concerning the epistemological value of the distinction between negative and positive liberty (Berlin, 1958 [1997]; Gray, 1993 ; Rawls, 1971 , 1993 ; Taylor, 1979 ), theoretical disagreement about their meanings (Taylor, 1979 ), and the caricatures by which they are often understood (e.g., positive liberty as a form of being “forced-to-be-free”; Taylor, 1979 ), governmental protection of private restrictions on liberty under neoliberalism shows that neoliberal political theory does not dispense with the coercive feature of positive liberty (see Gray, 1989 for a reading of Hayekian freedom as more than merely negative).

This not a negligible issue; neoliberal political philosophers establish a relationship between the main act of the people’s sovereignty, or its constitutional power—establishing a public law that provides to each person a unique set of liberties with regard to the use of material goods and imposes on each a unique set of restrictions—and the violation of individual liberty (Hayek, 1976 ; Nozick, 1974 ). The replacement of the people’s sovereignty with the spontaneous order is thought to be justifiable because “when we obey laws, in the sense of general abstract rules irrespective of their application to us, we are not subject to another man’s will and are therefore free” (Hayek, 1960 , p. 11). When arguing against the oppressive nature of the rules that issue from the people, neoliberalism relies on the positive meaning of liberty (freedom to be one’s own “master”; Berlin, 1958 (1997)). A private right to a good that results from the (perhaps unequal) contribution of all constitutes a coercive act of positive liberty—“coercing others for their own sake, in their, not my, interest” (Berlin, 1958 (1997), p. 397). Similarly, the imposition of that right on society as a whole through legislation, including those who have been deprived of their well-being, also constitutes positive coercion . Citizens who are deprived of their well-being must simply accept the neoliberal diktat , i.e., the transference of their well-being to the few (Stiglitz, 2013 ). In a paternalistic way—according to Berlin, ( 1958 (1997)), positive liberty is always paternalistic in some sense—neoliberal politicians argue that there is no alternative (TINA) to neoliberal political legislation (the government knows best). Consequently, under the veil of state juridical and political violence, neoliberal politicians present governmental rules as an ultimatum , precluding consent, i.e., forcing individuals to give up their political right to challenge that deprivation (see the political meaning of TINA , Queiroz 2016 ; Queiroz 2017 ). The rejection of all public right, i.e., the exclusion of peoples, introduces into the core of the theory (and its practice) the despotic feature that neoliberalism attributes to the general will. In other words, the neoliberal political order mirrors the despotic nature that neoliberals attribute to the meaningless or mystical general will (Buchanan and Tullock, 1962 ).

The neoliberal ultimatum not only protects those citizens who apparently do not need the state’s intervention but also ensures that the law only protects their interests (which constitutes the privatization of legal protection). Neoliberal theorists understand public rules as means of protection, as if private interests were not highly dependent on law. Indeed, Nozick’s distinction between ‘public’, “paternalistically regulated” citizens (Nozick, 1974 , p. 14) and free citizens, who dispense with state intervention, obscures the existence of private, “paternalistically regulated” citizens. These citizens are protected by the reparations of neoliberal “public” law. In addition, however, rather than accepting the collective protective scope of the law, they demand a monopoly on it. Although neoliberalism casts them as utterly independent actors—lone Robinson Crusoes—they are highly dependent not only on the contributions of others for their well-being but also on the positive law. This shows that unless there is a common law to prevent others from interfering with one’s liberty and to provide certain means, negative liberty is an empty claim.

Insofar as the protective function of the government and the positive law include both legislative and coercive power, instead of coercing others for one’s own sake, neoliberal positive liberty allows private individuals to impose, without consent, public restrictions for the sake of their private interests. Neoliberal positive liberty thus leads to the establishment of legal and political inequality: some command without consent, i.e., without restriction, while others obey without consent, i.e., without liberty. Ultimately, making use of the benefits of negative liberty depends on the (political) attribution to individuals of certain legal and political statuses, under which they can make use of their liberty.

Moreover, the positive liberty that underlies the spontaneous order not only deprives certain citizens of their share of the general well-being but also leaves no room to claim a right against that deprivation. Besides protecting negative liberty in the maximization of individuals’ well-being, this order does not provide any concrete rights. Hayek explicitly says that it “is meaningless to speak of a right in the sense of a claim on the spontaneous order” (Hayek, 1960 , p. 102, II). Indeed, although framed by abstract rules, rights are always obtained under particular circumstances, i.e., in terms of differences between “individuals”, for example natural and social talents (Hayek, 1976 ; Nozick, 1974 ). Despite the interdependence of all individuals, individuals always remain separate unities and are thus deprived of the right to claim a common share of the fruits of their relationships—as if belonging to a common body entailed personal indifference and the abandonment of private interests. Accordingly, if the Great Society, which replaces the will of the people, does not provide rights to citizens, and if those citizens do not obtain them from their private interactions, it is meaningless to claim such a right or to complain that such a right has been denied them. There is nothing to claim or to complain about . In other words, where there are no rights, there can be no deprivation of rights.

Even if individuals wish to complain about the deprivation of their rights, the neoliberal state—which considers such rights imaginary, fictitious, mystical—does not contain institutions that can address such complaints. Under the neoliberal state, both the people and public institutions vanish into thin air. As Beck stresses with regard to neoliberal globalization, neoliberalism is the power of Nobody (Beck 2002 ). Alluding to Odysseus’s clever escape from the cyclops Polyphemus in the Odyssey (Homer, 1996 , 9, pp. 414–455), Beck suggests that the Nobody created under neoliberalism does not establish, protect or enforce equal individual rights. Even though Nozick (unlike Hayek) accepts the existence of natural rights and liberties, his rejection of a public person and public restrictions shows that the assumption of natural rights does not guarantee their enjoyment. In other words, when the will of the people becomes a mirage, individuals’ natural rights are also rendered illusory, as the neoliberal spontaneous society illustrates. Accordingly, instead of allowing for the “creat(ion of) conditions likely to improve the chances of all in the pursuit of their aims” (Hayek, 1976 , p. 2), private restrictions on liberty deprive certain citizens of the chance to pursue their aims (Brown, 2015 ; Gill, 1998 ; Hall, 2011 ; Klein, 2007 ; Overbeek, 1993 ; Stiglitz, 2013 , 2016 ). Instead of protecting individual liberty, the rejection of the “fairy tale” of the people allows for the emergence of two familiar political statuses, originally deployed in neoliberal political society: those who live under free self-serfdom on the one hand and the invisible and voiceless on the other.

Free self-serfdom and voiceless persons

A free serf is someone who, although deprived of political protection—whether this is understood as it was in the medieval era (Bloch, 1961 ), which made a distinction between the protector and the protected, or as it was understood in the liberal tradition (Locke, 1679 (1960); Kant, 1793 (1977)), in which each person is simultaneously protector and protected—can still satisfy their bodily needs through selling themselves or their labor. Neoliberal private restrictions on liberty cannot override the unrestricted autocratic deliberation of those who, in the absence of public law, can freely renounce their liberty in situations of extreme need, thus voluntarily enslaving themselves. The rejection of a public limit to individual liberty, along with the overlapping of public law and private interests, allows for unrestricted orders and, correlatively, for obedience without liberty (on work precariousness see Gill and Pratt, 2008 ; on work conditions in sweat shops, see Bales 1999 ). Consequently, neoliberal political theory and practice allow for the creation of a situation in which some citizens (serfs) only obey while others (lords) only command.

One may argue that despite social and economic differences, along with their non-negligible impact on individual liberty (Marx 2000 ; Rawls, 1971 ), neoliberalism’s Great or Open Society is not compatible with serfdom. Regardless of the lack of clear political criteria for defining an individual’s legal and political status (Bloch, 1961 ), human relationships have evolved under conditions of legal and political inequality (for example the superior free person vs. the inferior serf or vassal). This legal and political inequality is at work, for example, in systems where lords offer protection in exchange for total obedience (on the part of serfs and vassals) (Bloch, 1961 ). From the perspective of neoliberal theory, we are all equal: neoliberal society does not contain legal or political inequality and does not divide citizens into those who are superior and those who are inferior. It also does not include “protective relationships” or juridical and political obligations. To be at the disposal of someone else who can do whatever they please and to whom one owes unrestricted obedience entails neither that one has an inferior legal status nor that the political relationship at stake is one of a superior to an inferior. Persons have the same legal constitutional status (they all are seen as equally free), and all are equally entitled to pursue their private interests. Even if people sell themselves, this concerns the private restriction of liberty from the perspective of neoliberalism and does not conflict with the conditions required for the proper functioning of the spontaneous order, i.e., with individuals’ private liberty. Still, the private scope of individuals’ mutual service—the forbidding of serving others for the sake of those others’ well-being —does not prevent a person’s serving another as a means of ensuring their own private well-being, in which case it would not be appropriate to understand their relationship in terms of servant and seignior.

Besides entailing what is known in political philosophy as the liberty of slaves, i.e., the liberty of choosing either to comply with the orders of the master or to be beaten to death, the privatization of the well-being that results from individuals’ cooperation is based on the coercive restriction of liberty, under which some obey without liberty and others command without restriction. Thus, even if in neoliberal spontaneous societies people are not assigned explicitly different political statuses, which entail different political rights and duties, neoliberal political society does not prevent people from becoming servile or, correlatively, from becoming despotic. This fact reveals the extent to which neoliberalism entails a dangerous process of what some authors have called refeudalization (Supiot, 2013 ; Szalai, 2017 ), full analysis of which deserves examination of its own.

Nevertheless, when obeying without liberty , if citizens fail to acquire their rights they risk becoming something less than a free serf, i.e., a free excluded citizen. A free excluded citizen is a citizen who lives in a free society without having the personal, social or institutional resources to make use of their own liberty . When the neoliberal spontaneous order does not provide any concrete rights, and when another’s wellbeing has no bearing on one’s own, one is unrestrictedly free to pursue one’s own wellbeing even to the detriment of others unilaterally (the fully alienated person can be thrown away). In this case, voiceless and invisible citizens can only enjoy purely negative liberty, in the absence of the personal, social and institutional resources with which they might otherwise achieve well-being. Neoliberalism also entails the continuous risk of passing from servile (or docile) citizenship into lawless personhood. As such, individuals’ social existence is excluded from the neoliberal subjectivation procedure itself (in which human beings make themselves and are made subjects, Foucault, 2008 ).

Neoliberalism does not reduce to fostering the entrenchment of political inequality: the division of citizens into those who obey and those who command. It also does not merely imply a situation in which some are protected by the state while others are not, where private interests have a monopoly on legal protection and rights while others are denied political protection and only have duties (on work precariousness see Gill and Pratt, 2008 ). Similarly, it does not exclusively entail political arbitrariness; the private reduction of the “public” law allows for the unilateral institution of the rules (or their revocation). Ultimately, neoliberalism risks leading to the total exclusion of some citizens under the veil of full liberty . The vanishing of the will of the people results in the invisibility of certain kinds of people, who are then forced to live in the spontaneous society as if they were stateless or lawless persons.

It is true that under the distinction between neoliberal theoretical premises and neo-liberal practice individuals’ lack of protection does not correspond to these extreme cases. There is a distinction between neoliberal theoretical premises and neoliberal governmental laws within the many versions of the welfare state, for example neoliberalism’s reshaping of previous (welfare) state policies along neoliberal lines (Kus, 2006 ). Neoliberalism has retained some of the elements of that state (such as the protection of the rights of the most vulnerable), although these elements have been reshaped by the market approach to social welfare (Hartman, 2005 ; MacLeavy, 2016 ). On this basis, neoliberal officials have assigned public goods and services to private market providers, redesigning social programs to address the needs of neoliberal labor markets rather than personal wellbeing and establishing partnerships between the state and the private sector (Brodie, 2007 ).

Moreover, some argue that neoliberalism’s market approach to social welfare was an attempt to overcome certain economic and social difficulties of the welfare state. For example, economic internationalization has affected the competitive viability of the welfare state (Boyer and Drache, 1996 ; Rhodes, 1996 ). Also, the expansion of the state weakened intermediate groups and jeopardized individual liberties, subjecting citizens to increasing bureaucratic controls (Alber, 1988 ). We shall not dwell on a full analysis of these developments. The neoliberal market approach is, however, incompatible with the very idea of a welfare state. Indeed, despite the differences between the socialist, conservative and liberal versions of that state (Esping-Andersen, 1990 ), welfare states protect social rights, such as the right to education and health, and therefore provide social policies to enforce them (Marshall, 1950 ; Esping-Andersen, 1990 ), such that “[t]he provided service, not the purchased service, becomes the norm of the social welfare” (Marshall, 1950 , p. 309). Moreover, the functioning of the welfare state requires the contribution of fellow citizens (Marshall, 1950 ; Esping-Andersen, 1990 ). By contrast, the market approach rejects in principle all social rights, such as the right to education and health, and requires that individual welfare be an exclusively private enterprise (Brodie, 2007 ; MacLeavy, 2016 ). Instead of being provided, such services ought to be purchased (Brodie, 2007 ; MacLeavy, 2016 ).

Moreover, if the economic market only identifies solvable needs, and if individuals cannot signal their lack of resources, the neoliberal welfare state cannot prevent individuals who have been deprived of their rights from becoming invisible, along with the resulting institutionalized insecurity (Brodie, 2007 ), intensified poverty and inequality, and diminishing of security of employment and income for many wage earners (Clayton and Pontusson, 1998 ; Stiglitz, 2013 ). If the spontaneous society and its governments do not provide any rights, and if individuals do not acquire them in the economic market, there is no reason to claim such rights (including social rights). In this case, neoliberal social welfare reduces to charity (Clayton and Pontusson, 1998 ; Raddon, 2008 ; Mendes, 2003 ). Under this reduction, neoliberal theory fosters individuals’ dependence on the private goodwill of citizens who, after legislating with their own interests in mind, and after denying others the right to enjoy the fruits of their own contributions, then establish government spending as a “free lunch” of sorts (all the while paradoxically arguing that “government spending is no free lunch” (Barro, 2009 ); see Nozick’s, ( 1974 ) defense of charity)). The neoliberal conception of welfare also shows how neoliberal theory and practice do not prevent the subordination of certain individuals to non-consensual external mastery.

Neoliberalism is equally committed to state retrenchment or permanent austerity (Whiteside, 2016 ). By requiring fiscal consolidation, cuts to social security, the privatization of public property, the liberalization of collective bargaining, and the shrinking of pensions (Barro, 2009 ), austerity not only undermines all attempts to establish social security but also challenges the liberal and democratic basis of society. First, neoliberal austerity neglects people’s well-being. A Portuguese neo-liberal politician declared in 2013 that even if under austerity measures the well-being of the people had worsened, the country was better off Footnote 1 . The fact that neo-liberal policies have improved the state market is more relevant than the fact that the Portuguese people have been neglected and severely harmed (Legido-Quigley et al. 2016 ).

Second, neoliberalism excludes in principle the will of the people, i.e., it obliges citizens to obey private laws to which they have not consented. Consequently, it excludes citizens’ rejection of its harmful effects, such as poverty and inequality, and rejects all appeals to alternative policies. Following the political referendum of 2015, for example, where the people voted against neoliberal politics of austerity Footnote 2 , the Greek government nonetheless imposed a third harsh and austere economic program Footnote 3 .

Accordingly, neoliberal political principles, embedded in austerity policies, cannot prevent certain citizens from becoming invisible and voiceless citizens, i.e., Nobodies . As voiceless citizens, their preferences can only be registered through illiberal and antidemocratic channels, such as populism. Only following the election of US President Trump did the deteriorating life conditions of American citizens living in the rust belt states of Michigan, Pennsylvania and Wisconsin become widely known (Walley, 2017 ). Treated as nothing, and having becoming Nobodies, these citizens face the oppressive and violent institutional neoliberal Nobody, with its no less violent and oppressive political body.

The rise of populism

There is a lack of consensus on the definition of populism (Collier, 2001 ). It can, however, be described as an organizational or a strategic approach (Weyland, 2001 ) and ideology (Freeden, 2016 ; MacRae, 1969 ; Mudde, 2013 ; Mudde and Kaltwasser, 2013 ). The organizational perspective of populism stresses the importance of the personal leader, who bases his or her power on direct, unmediated, and institutionalized relationships with unorganized followers (Weyland, 2001 ). In turn, as an ideology, i.e., a set of beliefs, values, attitudes, and ideas, populism combines (not always coherently and clearly) political, economic, social, moral, and cultural features with several characteristics that appear together, such as emphasis on the leader’s charisma: “the populist can demand the highest principles in the behavior, moral and political, of others while being absolved him or herself from such standards” (MacRae, 1969 , p. 158). Beyond these features, however, and despite the fact that the concept of the “pure” people and the corrupted elite can be framed in different ways (Canovan, 1999 ), the pure and homogenous people and the corrupt and homogenous elites are core concepts that underlie populist ideology (Mudde, 2004 ).

Since neo-liberal officials do not consider citizens’ and peoples’ political claims and are not entitled to address the political, economic, and social consequences of their policies, the perception that neo-liberal politicians are corrupt elites has been on the increase (Mudde and Kaltwasser, 2013 ). This has helped populist leaders to replace neo-liberal politicians, allowing populism to fill the emptiness that has resulted from the failure of those in power to address the people’s claims.

Although the relationship between neoliberalism and populism deserves its own examination, the exclusion of the people, along with the right to reciprocal coercion, is a point of tacit agreement between neoliberalism and anti-liberal, anti-democratic political forces (Weyland, 1999 ). Populist leaders have employed modern, rational models of economic liberalism—such as fiscal consolidation, cuts to social security, the privatization of public property, the liberalization of collective bargaining, and the shrinking of pensions to undermine intermediary associations, entrenched bureaucrats and rival politicians who seek to restrict their personal latitude, to attack influential interest groups, politicians, and bureaucrats, and to combat the serious crises in Latin America and Eastern Europe in the 1980s (Weyland, 1999 ). In turn, neoliberal experts use populist attacks on special interests to combat state interventionism and view the rise of new political forces, including populists, as crucial for determined market reform (Weyland, 1999 ). We therefore ought to be careful not to criticize neoliberal authoritarianism while neglecting the hidden powers that secretly support neoliberalism’s disdain for the people, such as mafias (Schneider and Schneider, 2007 ). Indeed, those who do so may take pleasure in seeing the blame for authoritarianism fall exclusively on the shoulders of neoliberal theory and practice, even though they too endorse a form of governance and the administration of the state apparatus that does away with the people.

When individuals’ relationships evolve in the absence of the people and of laws to protect against despotic and abusive power, an increase in illiberal and antidemocratic forms of resistance to neoliberal policies can only be expected (Gill, 1995 ; Hickel, 2016 ). As Locke, ( 1679 (1960): II, p. 225) put clearly:

Great mistakes in the ruling part, many wrong and inconvenient Laws, and all the slip s of human frailty will be born by the People, without mutiny or murmur. But if a long train of Abuses, Prevarications, and Artifices, all tending the same way, make the design visible to the People, and they cannot but feel, what they lie under, and see, whither they are going; ’tis not to be wonder’d, that they should then rouze themselves, and endeavour to put the rule into such hands, which may secure to them the ends for which Government was at first erected.

If we accept that (a) impoverishment and inequality are on the increase; (b) governments are refusing to provide political remedies for this impoverishment; (c) and citizens’ political choices are being neglected in a long series of abuses, it is not surprising that voiceless citizens may try to put the ruling power into illiberal hands that will achieve the purpose for which government was first established: securing the common public good. Under the neoliberal transformation of private rules into public rules, citizens are witnessing a continuous disregard for their collective well-being (see the relationship between the election of Donald Trump and the deteriorating life conditions of American citizens living in the rust belt states of Michigan, Pennsylvania and Wisconsin; Walley, 2017 ).

Instead of welcoming populist reactions, however, we should be clear that the anti-liberal and antidemocratic hijacking of the citizens’ revolt against neoliberalism in no way respects the need for public rules. A call for the establishment and protection of public law is a call for personal and institutional liberal and democratic sovereignty , which differs fundamentally from populism and the neoliberal model of sovereignty (Dean, 2015 ; Foucault, 2008 ). This claim also rejects the political (and nightmarish) choice between neoliberalism and populism. Indeed, even if the relationship between liberal democracy and populism deserves investigation of its own, liberal and democratic sovereignty does away with the distinction between the pure and homogenous people against corrupt and homogenous elites. It also rejects the idea of the personal and benevolent leader/protector, who bases their power on direct, unmediated, and institutionalized relationships with unorganized followers.

First, although the distinction between corrupt elites and the pure people rightly points to the problem of the legitimacy of the rulers’ power, the people is not a homogeneous or pure body, whatever the criterion of belonging (ethical, ethnic, racial, economic). Far from referring to an undifferentiated and homogeneous corpus , the people is a heterogeneous political body, which includes gender, racial, and economic differences (along with disagreement about personal and collective ends), and which ultimately entails non-alienable individual rights and duties (Locke, 1679 (1960); Kant, 1793 (1977); Sieyes, 1789 (1989)).

Second, the solution to this gap is not its elimination through the immediate relationship between the leader and the pure, homogeneous people. In the liberal political tradition, there is no immediate political power. Rawls’s, ( 1993 ) political liberalism, for example, points to the gap between the political principles of society (e.g., the principles of justice), which are embedded in its basic political institutions (e.g., constitutions) and in “executive” institutions (parliaments, courts, governments), and the individuals in everyday life. Accordingly, the sovereignty of the people ultimately means that, whether at the political, local, national, international, or global level, citizens’ relationships are always mediated by law embedded in their public institutions (Locke, 1679 (1960); Kant, 1793 (1977); Rawls, 1993 ).

Even if there are many points of ideological disagreement concerning the concept of the people, sparked mainly by its use by controversial figures from the standpoint of liberalism, such as Rousseau’s concept of the general will, in Locke’s and Kant’s political philosophy the sovereignty of the people does not mean that the people can pursue its immediate and unbridled wishes. A charter of rights or constitutional principles always binds the will of the people (Locke, 1679 (1960); Kant, 1793 (1977)). In the absence of such restrictions, the people can itself become a despot, a danger which has been acknowledged since at least the time of Aristotle, ( 2002 ; see also Cicero 1999 ; Locke, 1679 (1960); Rawls, 1971 , 1993 ).

Third, in Locke’s and Kant’s political philosophies, the protective role of the people aims to ensure a political society of free and equal persons, not a society of minor and inferior subjects who need benevolent protectors, such as populist leaders (see Locke’s claim concerning the constitutional protection of individuals’ political rights (Locke, 1679 (1960)) and Kant’s rejection of paternalistic and despotic political power (1793 (1977)).

Liberal theory challenges the underlying neoliberal and populist Manichean opposition between personal interests and the general will of the people (“either there is a general will or individual liberty is repressed”, “if there is individual liberty, the general will is excluded”). If, when protecting the homogenous people against corrupt elites, populists endorse the first alternative, and if the neoliberal exclusion of the people corresponds to the second, both approaches remain blind to the political responsibility of free persons. Ultimately, whether by imposing on others the unrestrictedly and selfish pursuit of well-being or by appealing to the unlimited will of the people, both undermine individuals’ political freedom.

For these reasons, personal and institutional liberal and democratic sovereignty is more than a childish claim to state protection against political irresponsibility and blindness to public contributions to individual private well-being. It is a claim to one’s own political responsibility, for oneself and others, as this claim is clearly formulated in Locke’s and Kant’s political philosophies.

The social safety net

Although Locke’s and Kant’s political philosophies do not require individuals under public law to positively foster others’ social, economic and cultural well-being, their perspectives on the public challenge indifference towards the increasing poverty and inequality that we are currently witnessing under neoliberalism (Greer, 2014 ; Stiglitz, 2013 ). They also speak against the state authoritarianism that neoliberalism engenders (Brown, 2015 ; Bruff, 2014 ; Kreuder–Sonnen and Zangl, 2015 ; Orphanides, 2014 ; Schmidt and Thatcher, 2014 ). Of course, we may disagree on the extent of the success or failure of Locke’s and Kant’s theoretical political constructions of a political personality, understood in analogy with a single body. Some criticize the illiberal nature of Kant’s general will (for example the representatives’ betrayal of the people’s interest in the liberal social contract; Badiou, 2016 ). Nevertheless, these weaknesses challenge neither individual liberty, nor the people, nor the inter-protective role of the people and public law. Indeed, they remind us of the political meaning of ‘the body politic’.

Despite their strong commitment to the protective role of the people, along with their awareness of our political responsibility for the fairness of the public rules that affect us all , Locke and Kant do not fully explain the necessity of the notion of the people when it comes to producing a social safety net created by the will of the sovereign people. They also do not consider democratic procedures for arriving at collective support for a social safety net. With the differences between ancient and modern democracies acknowledged (Bobbio, 1988 ), the fact that Locke and Kant endorse democracy’s core feature, the existence of a people (the entire body of citizens) with a right to make collective decisions (Bobbio, 1988 ), does not make them democrats, at least in our modern sense (Bobbio, 1988 ).

Following our premises, and acknowledging the various ways in which globalization impacts states and people, democratic governments should establish democratic procedures at the national and international level to secure collective support for the political and social safety net. These include public laws based on the will of the people that provide each person with a unique set of liberties with regard to the use of material goods which impose on each a unique set of restrictions. These liberties and restrictions will ensure that individuals have an equal coercive power to prevent their becoming servile persons and, correlatively, to prevent any one of them from becoming a despotic lord. They also require the assumption of the cooperative nature of individual well-being, and therefore the pursuit of social justice with regards to the fruits of that cooperation. The political translation of the common right to the results of social cooperation through public policies that protect social rights, such as the right to education and health, is also desirable. This requires the “direct or indirect participation of citizens, and the greatest possible number of citizens, in the formation of laws” (Bobbio, 1988 , p. 38). Again, it is necessary to recast the political principle of provided (not purchased) services as a norm of public and social welfare. Finally, it requires awareness of the fact that in the absence of a political body to protect and enforce individual liberties, individuals will lack the personal, social and institutional resources to make use of their own liberty .

We have shown that neoliberalism’s rejection of the existence of the people seriously harms individual private liberty and does not prevent the transformation of the majority of free individuals into servile persons. More specifically, we have shown that forbidding the public restriction of liberty (which is inherent in the concept of the people) while exclusively defending private restrictions of liberty (a) deprives the majority of citizens of the equal right of coercion, and therefore of equal liberty, and (b) promotes the rise of different political statuses, a division between those who obey and those who command. We have also shown that neoliberalism lacks the resources to prevent the total alienation of liberty.

In comparing neoliberalism to Locke and Kant’s political philosophies, we have shown how the protective role of the people is compatible with individual liberty. Since it requires an equal right of coercion, it allows for the protection of individual liberty. We have also shown that this is not an exclusively collective task. It also depends on each citizen. In Locke’s and Kant’s political philosophies, the protective role of the people aims to ensure that political society is free and equal, not a society of minor and inferior subjects who need benevolent protectors (Locke, 1679 (1960)); Kant, ( 1793 (1977)). We concluded that, against neoliberalism’s faith in the powers of the spontaneous order, individual political autonomy depends on the public safeguarding of liberties. We also pointed out that unless there is a political turn toward the acknowledgement of the people or peoples, along with recognition of the significance of their political deliberation, neo-liberalism cannot be separated from illiberal and antidemocratic political choices. Similarly, if individuals’ relationships evolve beyond the existence of the people and lack laws to protect against despotic and abusive power, we cannot prevent the development of slavish and servile relationships among citizens. The fact that these relationships remain politically forbidden in neoliberal states, for example in the European Union, only reveals that neoliberalism’s dismantling of liberal and democratic political institutions has not fully succeeded. In the absence of the people, human rights depend exclusively on individuals’ interests; the spontaneous order thus cannot prevent neoliberalism from descending into slavery and serfdom, i.e., self-slavery and self-serfdom.

Future research should ascertain how, in the aftermath of neoliberalism’s devastating social and political effects on public cohesion, it might be possible to reconstitute a sense of political belonging (Habermas, 2008 ) and the sovereignty of the people (Pyke, 2001 ) under globalization.

Future research should also continue to evaluate the dangerous process of what many are calling refeudalization under neoliberalism (Supiot, 2013 ; Szalai, 2017 ). It is worth comparing the feudal alienation of political liberty, for example the different perspectives on vassalage (Bloch, 1961 ), with contemporary forms of inferior political status.

Finally, future research could evaluate how, as a reaction to the disenchantment with the rise of bureaucracy identified by Weber, ( 1978 ), neoliberalism might express a kind of re-enchantment with the exclusively individual rational actor, who claims a non-alienable space of liberty against the bureaucratic “iron cage”.

Data availability

All data analyzed is included in the paper.

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Introduction

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Liberty argued moral and partisan code that seeks to discover the form in which human beings are able to govern themselves. Liberty is how we visualize the roles and tasks of the distinct in society in connection to the idea of free will. Individual liberty entails the freedom of a person from outside obligation (Mill, 1).

People ought to act in agreement with their own free will. In the administration, perspective, Government has a duty to ensure distinct liberty whereas at the same time improving the condition of those with least benefit.

Liberty proclaims that freedom established in a person’s aptitude to trial agency has resulted from the right to develop funds to move out their own will. John S. Mill was the first to know the diversities among liberty as the choice to act, and liberty as the lack of force (Mill, 1).

Why is an individual liberty of interest?

Individual liberty is an admirable thing because it delivers protection from the ruling class or political rules. Social liberty limits ruler’s authority, so that they would not be capable to use the influence on their own desires and make verdicts which could be detrimental to society.

People should have the right to air their own opinion in the government’s resolutions (Mill, 1). Mill said that social liberty was “the nature and restrictions of the supremacy which can be rightfully used by humanity over the distinct”.

The attempt can be done in two ways: by gaining credit of certain political rights and also by the formation of a structure of legitimate checks (Mill, 1). Mill’s on liberty discourse the nature and restrictions of the power that can be lawfully applied by the society over the distinct.

Individual is coherent enough to make choices about their moral being and select any belief they want. Government should restrict when it is openhanded guard to the society. The power can be lawfully applied over a member of enlightened community, in contradiction to his wish, in the imperative to prevent harm to other people (Mill, 1).

The primary challenge of government in all ages has been the understanding of distinct and social interest. The protection beside popular administration, is as crucial as a safeguard against political dictatorship. The people may wish to harass a part of their population, and protection must be taken against any other abuse of power (Mill, 1).

The only drive, for which authority can be fairly applied over any member of enlightened community, is to avert harm to others, by either his action or indecision. The only share of the behavior of any person is the one which worries others.

The only freedom concern is the one which pursuits its own right in societies as long as we do not rob others. The peculiar wicked of quieting the expression of view is to rob the whole human race, present and future (Mill, 1). Mill’s prominence on human feeling and other human characters are vital improvement and response in contradiction to the unemotional.

What are principal arguments, which favor maximizing liberty?

Argument in favor of liberty states that persons can make superior decisions alone, and there is a risk of letting society agree with the finest way for people to overshadow any benefits that such meddling may incur (Mill, 1). Mill says the tussle for distinct liberty can be rewarded against dictatorial governments.

This battle can be won with the formation of democracy in which the administration was accountable to the people. The government could not be trusted with authority, as it was the citizen who uttered the use of such power. This belief evidenced to be untrue.

In a democratic society, the people with power are the popular, and the freedom of the rest of people still not protected against “the dictatorship of the popular”, and against the administrative authority, which is submissive to “modern popular”; opinion. Individual liberty in such a condition can be endangered both by cruel rules, and use of extra-legal ways to force the prevalent views (Mill, 1).

Mill’s put “onward”, his “one truly basic principle” to cure this problem. This principle states that the sole finales for which mankind are defensible, discretely or together, in meddling with the liberty of action of any of their people, is self-protection.

The only reason for which authority can be correctly used over many in an enlightened community is not to cause harm to other people. His own right is not an adequate warranted. He cannot lawfully be forced to do or abstain because it will make him cheerier, since, in the view of others, it would be the right thing to do.

The only portion of the behavior being amenable to the society, is the one which concerns others (Mill, 1). Mill’s theory reviews the dictatorship as a terrible thing that must be protected against. Mill facts come up with two kinds of actions plan.

The actions which hold damage to people, other than the agent and one” which does not embrace harm” to people. Mill maintains that, the government must legislate regarding actions which are harmless to other people in order to uphold the presence of a civil society.

Mill’s argues that the rights produced by the harm principle grow out of useful. It is useful being standard for the genuine range of the administration (Mill, 1). The Mill’s utilitarianism principal states that activities are right in proportion as they have a habit of approving happiness.

Mill argues that the right can be chastised in usefulness. The reason that an individual has a right to his belongings is “without the safeguard from thieves”, his helpfulness can be reduced when his properties can be stolen (Mill, 1).

Does his use of the distinction between self-and other-regarding acts weaken his case?

The self-regarding argument conducts work like a safety net for the Harm Principle. The Harm Principle still embraces factual information on justification of the reaction caused by the government intrusion.

Mill describes this subject harm as “conduct which neither disrupts any precise responsibility to the public, nor occasions noticeable hurt to any assignable distinct except him”. It does not warrant government intrusion (Mill, 1).

Happiness is what people ought to chase in life; this means that joy and desire should be a final reason for undertaking any task in life (Mill, 1). The insight brought to the forefront of the notion of the matchless human aptitude of reason through the growth of this reason, had the prospective for excellence (Mill, 1).

Mill, John Stuart. On Liberty, ed. Elizabeth Rapaport. Indianapolis: Hackett Publishing Company. 1978. Print.

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4.2 Constitutions and Individual Liberties

Learning outcomes.

Differentiate between negative rights and positive rights constitutions.
Define constitutionalism.
Analyze how different constitutional systems treat the individual.
Define due process.
Explain how the rule of law and its principles are important to individual freedom.

As discussed in Chapter 2: Political Behavior Is Human Behavior most countries have a formal constitution —a framework, blueprint, or foundation for the operation of a government. The constitution need not be in writing, in one document, or even labeled a constitution. Britain, New Zealand, and Israel do not have codified constitutions but instead use uncollected writings that establish the form of government and set out the principles of liberty. 14 In many countries, a series of documents, usually called the basic laws , codifies the government structure and individual rights. 15 If a country lacks a single document labeled a constitution, how does one know that certain writings serve as the country’s constitution? A constitution describes the underlying principles of the people and government, the structure of the branches of government, and their duties. It limits government, listing freedoms or rights reserved for the people, and it must be more difficult to amend or change than ordinary laws. 16

A constitution may be expressed in a way that emphasizes civil liberties as negative or positive rights. When political scientists say a constitution specifies negative rights , this means that it is written to emphasize limitations on government. Consider the wording of the First Amendment :

“ Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” 17 (emphasis added)

The amendment is phrased to focus not on what the government owes the people but on the limitations on the government’s ability to infringe upon the rights of individuals. The US Constitution leans toward being a negative rights constitution because most of the Bill of Rights is written in terms of restrictions on the government.

In a positive rights constitution, rights are written in terms of a government obligation to guarantee the people’s rights. For example, article 5 of the German constitution, the German Basic Law , states:

“Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures. . . . Freedom of the press . . . shall be guaranteed .” 18 (emphasis added)

This positive rights constitution emphasizes the government’s guarantee of freedom to the individual. Though the US Constitution is primarily seen as a negative rights constitution, like most constitutions it also describes positive rights, as in those clauses that guarantee the right to something. 19 Most democratic constitutions written after World War II are positive rights constitutions. After the Nazis used the existing German constitution to restrict people’s freedoms in Germany and in the countries they conquered, people in the affected countries wanted assurances that the government recognized its obligation to the people and not just the people’s obligation to the government. Similar fears caused many countries not occupied by the Nazis to create positive rights constitutions. 20 These constitutions make the government the protector of freedom against all infringements. They do not just limit government action restricting the individual.

Positive vs. Negative Rights

In this short clip, the Center for Civic Education distinguishes between positive and negative rights.

A country’s constitution delineates the degree of freedom of action that the government allows the individual, and that degree varies by political system. An individualist system emphasizes individuals over the community, including the government, while a communitarian system emphasizes community cohesiveness while recognizing the importance of individual freedoms. Countries vary in terms of the nature of their systems and the degree to which they stress individualism or communitarianism.

What Are the Characteristics of Individualist Systems?

In an individualist system, individuals take precedence over the government. Society rests on the principle that individuals inherently possess rights that the government should preserve and promote. Two major styles of individualism are common today: libertarianism (also called classical liberalism) and modern liberalism . Libertarianism emphasizes restraints on government. Liberalism emphasizes the government’s obligation to enforce laws that protect personal autonomy and rights. Let’s review some of the different philosophies discussed in Chapter 3 in terms of how they impact civil liberties.

In libertarianism, individualists believe that governments exist to assist individuals in achieving their private interests. Therefore, libertarians place many restrictions (negative rights) on the government. As John Stuart Mill observed in his essay On Liberty (1859), in a strict individualist society:

“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. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise.” 21

The focus is on the individual, and the benefits to society that might flow from any restriction on the individual must be clear and convincing. This does not mean that the government can never restrict individual action, nor that the good of society need be wholly ignored. Still, it does mean there must be proof of sufficient harmful effects to justify any restraint. This is where the conflict between the individual and society occurs. It is here that the US style of “no law . . . abridging the freedom of speech” comes into play. For example, a person in the United States can say anything against any political candidate; they can even lie about the candidate. 22 With the restriction on government action abridging free speech, no laws restrict that person’s conduct. However, they cannot say they will kill a candidate at three o’clock on Tuesday afternoon. This is a threat to an individual’s safety and to society’s law and order, so the government has laws to punish the person for making the threat. Further, some US statutes make a person liable for damages if they engage in defamation—that is, if they lie about and cause harm to a private person—although these statutes do not apply to lies about political candidates. Thus, even with the United States’ negative rights libertarian-style constitution, the government is not prohibited from imposing restrictions “abridging the freedom of speech” in every situation at all times.

In an individualist society formed in a liberal style, the government actively protects individual rights. For example, under the German Basic Law and its guarantees of free speech, the government can prosecute a person for making false statements or heckling a candidate while they are making a speech. This is a violation of the Basic Law because the rights of free speech “shall find their limits in the provisions of general laws, in provisions for the protection of young persons and in the right to personal honour.” 23 Liberal governments are more proactive than libertarian ones in protecting the individual’s rights. Because they do so to protect the rights of all individuals for the good of society, they place more restrictions on the individual. Still, governments in liberal societies cannot wholly deny a person’s individual liberties.

What Are the Characteristics of Communitarian Systems?

A communitarian system emphasizes the role the government plays in the lives of citizens. Communitarian systems are grounded in the belief that people need the community and its values to create a cohesive society. Government exists not only to protect rights but also to form a political community to solve public problems. There is a public good, and it is the government’s job to protect it, even if that means restricting individual behaviors. Communitarians oppose excessive individualism, arguing that it leads people to be selfish or egocentric, which is harmful to a community. Individuals do not stand apart from society in discrete autonomy; they are part of society and have a role to play in protecting society.

How countries put communitarianism into practice varies widely. Some countries, such as China, Singapore, and Malaysia, have authoritarian governments. This style of government enforces obedience to government authority by strongly limiting personal freedoms. These governments emphasize and enshrine in their constitutions social obligations and the common good. The Chinese constitution states, “Disruption of the socialist system by any organization or individual is prohibited.” 24 In article 35, the Chinese constitution provides that “citizens of the People’s Republic of China enjoy the freedom of speech, of the press, of assembly, of association, the procession and demonstration.” 25 However, comparing these two clauses with actual practices in the People's Republic of China shows that the government’s emphasis is not on protecting individual freedom and autonomy but on protecting the government’s view of a cohesive society. 26

Responsive communitarianism contrasts with the authoritarian style of communitarianism and the perceived selfishness of libertarianism. It seeks to blend the common good and individual autonomy while not allowing either to take precedence over the other. The individual is within society, the community, so the community constructs part of the individual identity. In responsive communitarianism , individual rights are balanced with societal norms of the good, and society or the government restrains the individual when individual action challenges an accepted norm. For example, the majority of people living in the United States today oppose slavery and racial injustice. However, had those people been born in the 18th century, many would have supported such concepts. Every community has standards that it declares essential to the common good—the common ground on which the community is formed. In circumstances where the common good takes precedence over the individual, conflict can ensue, and the society, including the government, must decide how to resolve the dispute.

The COVID-19 pandemic mentioned at the beginning of this chapter resulted in severe illness and mass deaths around the world. Many viewed government actions restricting individuals during the pandemic as justified because the challenge the disease posed to society was severe enough to warrant temporarily suspending certain freedoms. People accepted or rejected these government restrictions depending on the degree to which they accepted scientific explanations and on their views of individualism and communitarianism. Scientists explained how the disease spread, and government leaders urged compliance. In many areas of the world, the government instituted restrictions on movement, required that people wear face masks, and punished persons who violated these edicts. Some individuals claimed that their rights were being violated. Some argued that masks do not make a significant difference in transmission of the virus and are unnecessary in most situations. Significant scientific evidence refutes this claim, but such individuals refused to accept it. They also argued that it is their inalienable right to decide whether or not to risk becoming sick or dying, prioritizing that right over the risk they might pose to others. 27 When initial illness rates started to decline and vaccinations became available, the argument shifted to when and how to open up the social sphere and whether to require that people be vaccinated to enter certain places or to participate in certain activities. 28 These responses to the pandemic are a perfect example of the conflicts inherent in everyday situations that require a balance between individuals’ civil liberties and the government’s obligation to act for the common good.

Whether and to what degree a system is individualistic or communitarian does not determine if the system is a constitutional government. Simply having a document labeled a constitution does not give a country a constitutional government; to be considered a constitutional government, a country must practice constitutionalism.

What Is Constitutionalism?

The three main elements of constitutionalism are adherence to the rule of law, limited government, and guarantees of individual rights. The rule of law has four principles:

Accountability : Government and private actors are accountable under the law, and no one is above the law.
Just laws : The laws are clear, publicized, stable, and applied evenly. They protect fundamental rights, including protecting persons and property and certain core human rights.
Open government : The processes by which the laws are enacted, administered, and enforced are accessible, fair, and efficient.
Accessible and impartial dispute resolution : Justice is delivered in a timely manner by competent, ethical, and independent representatives, and neutral decision makers are accessible, have adequate resources, and reflect the communities they serve.

Constitutionalism balances limited government with the fundamental worth of each individual. The government is limited because people have some right to make their own life decisions. The fundamental worth of each individual means that people have some right to self-determination, as shown in a bill of rights in a constitution. Maintaining a balance between government authority and individual freedom is a challenge.

Utilizing due process is part of the rule of law and constitutionalism, so it is more robustly defended in countries that practice constitutionalism than it is in those with constitutions that do not adhere to all the elements of constitutionalism.

Due process is a legal requirement that the government respect the rights of the people, and it is a demonstration of the rule of law and the balancing of government power with individual rights. In the US Constitution, the due process clause provides that no one shall “be deprived of life, liberty, or property, without due process of law.” 29 This clause applies to all persons, not just citizens of the United States. There are two aspects of due process: procedural due process and substantive due process. Procedural due process concerns the written guidelines for how the government interacts with individuals, while substantive due process concerns the individual’s right to be treated fairly when interacting with the government. A violation of due process offends the rule of law because it puts individuals or groups above the law or treats individuals or groups without equality.

Due Process of Law

In this video clip, Randy E. Barnett, professor of constitutional law at the Georgetown University Law Center, looks at the overarching concept of due process through the lens of US government and its British origins.

When one thinks of the due process of law as government fairness to all persons, civil rights and civil liberties become intertwined. In the landmark same-sex marriage case Obergefell v. Hodges , the United States Supreme Court held that the due process clause of the 14th Amendment guarantees that the government will defend as a fundamental liberty the right to choose whom one will marry. The court also held that to deny that liberty would violate the Equal Protection Clause of the 14th Amendment because doing so would amount to unequal treatment of same-sex and opposite-sex couples, thus denying a same-sex couple equal protection of the law and amounting to a violation of the couple’s civil rights. 30

Thus, same-sex marriage is both a civil liberty and a civil rights issue. The right to marry is a civil liberty because it is a freedom from government interference in one’s choice of a life partner. Same-sex marriage is a civil rights issue because to deny same-sex couples the right to marry is to subject them to unequal treatment. The case of same-sex marriage shows how both civil rights (equality) and civil liberties (freedom from government interference) are a part of the fair government treatment of individuals.

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Authors: Mark Carl Rom, Masaki Hidaka, Rachel Bzostek Walker
Publisher/website: OpenStax
Book title: Introduction to Political Science
Publication date: May 18, 2022
Location: Houston, Texas
Book URL: https://openstax.org/books/introduction-political-science/pages/1-introduction
Section URL: https://openstax.org/books/introduction-political-science/pages/4-2-constitutions-and-individual-liberties

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On Liberty. By John Stuart Mill.

With an Introduction by W. L. Courtney, LL.D.

The Walter Scott Publishing Co., Ltd. London and Felling-on-Tyne New York and Melbourne

To the beloved and deplored memory of her who was the inspirer, and in part the author, of all that is best in my writings—the friend and wife whose exalted sense of truth and right was my strongest incitement, and whose approbation was my chief reward—I dedicate this volume. Like all that I have written for many years, it belongs as much to her as to me; but the work as it stands has had, in a very insufficient degree, the inestimable advantage of her revision; some of the most important portions having been reserved for a more careful re-examination, which they are now never destined to receive. Were I but capable of interpreting to the world one-half the great thoughts and noble feelings which are buried in her grave, I should be the medium of a greater benefit to it than is ever likely to arise from anything that I can write, unprompted and unassisted by her all but unrivalled wisdom.

INTRODUCTION. I.

John Stuart Mill was born on 20th May 1806. He was a delicate child, and the extraordinary education designed by his father was not calculated to develop and improve his physical powers. "I never was a boy," he says; "never played cricket." His exercise was taken in the form of walks with his father, during which the elder Mill lectured his son and examined him on his work. It is idle to speculate on the possible results of a different treatment. Mill remained delicate throughout his life, but was endowed with that intense mental energy which is so often combined with physical weakness. His youth was sacrificed to an idea; he was designed by his father to carry on his work; the individuality of the boy was unimportant. A visit to the south of France at the age of fourteen, in company with the family of General Sir Samuel Bentham, was [Pg viii] not without its influence. It was a glimpse of another atmosphere, though the studious habits of his home life were maintained. Moreover, he derived from it his interest in foreign politics, which remained one of his characteristics to the end of his life. In 1823 he was appointed junior clerk in the Examiners' Office at the India House.

Mill's first essays were written in the Traveller about a year before he entered the India House. From that time forward his literary work was uninterrupted save by attacks of illness. His industry was stupendous. He wrote articles on an infinite variety of subjects, political, metaphysical, philosophic, religious, poetical. He discovered Tennyson for his generation, he influenced the writing of Carlyle's French Revolution as well as its success. And all the while he was engaged in studying and preparing for his more ambitious works, while he rose step by step at the India Office. His Essays on Unsettled Questions in Political Economy were written in 1831, although they did not appear until thirteen years later. His System of Logic , the design of which was even then fashioning itself in his brain, took thirteen years to complete, and was actually published [Pg ix] before the Political Economy . In 1844 appeared the article on Michelet, which its author anticipated would cause some discussion, but which did not create the sensation he expected. Next year there were the "Claims of Labour" and "Guizot," and in 1847 his articles on Irish affairs in the Morning Chronicle . These years were very much influenced by his friendship and correspondence with Comte, a curious comradeship between men of such different temperament. In 1848 Mill published his Political Economy , to which he had given his serious study since the completion of his Logic . His articles and reviews, though they involved a good deal of work—as, for instance, the re-perusal of the Iliad and the Odyssey in the original before reviewing Grote's Greece —were recreation to the student. The year 1856 saw him head of the Examiners' Office in the India House, and another two years brought the end of his official work, owing to the transfer of India to the Crown. In the same year his wife died. Liberty was published shortly after, as well as the Thoughts on Parliamentary Reform , and no year passed without Mill making important contributions on the political, philosophical, and ethical questions of the day.

Seven years after the death of his wife, Mill was invited to contest Westminster. His feeling on the conduct of elections made him refuse to take any personal action in the matter, and he gave the frankest expression to his political views, but nevertheless he was elected by a large majority. He was not a conventional success in the House; as a speaker he lacked magnetism. But his influence was widely felt. "For the sake of the House of Commons at large," said Mr. Gladstone, "I rejoiced in his advent and deplored his disappearance. He did us all good." After only three years in Parliament, he was defeated at the next General Election by Mr. W. H. Smith. He retired to Avignon, to the pleasant little house where the happiest years of his life had been spent in the companionship of his wife, and continued his disinterested labours. He completed his edition of his father's Analysis of the Mind , and also produced, in addition to less important work, The Subjection of Women , in which he had the active co-operation of his step-daughter. A book on Socialism was under consideration, but, like an earlier study of Sociology, it never was written. He died in 1873, his last years being spent peacefully in the pleasant society of his [Pg xi] step-daughter, from whose tender care and earnest intellectual sympathy he caught maybe a far-off reflection of the light which had irradiated his spiritual life.

The circumstances under which John Stuart Mill wrote his Liberty are largely connected with the influence which Mrs. Taylor wielded over his career. The dedication is well known. It contains the most extraordinary panegyric on a woman that any philosopher has ever penned. "Were I but capable of interpreting to the world one-half the great thoughts and noble feelings which are buried in her grave, I should be the medium of a greater benefit to it than is ever likely to arise from anything that I can write, unprompted and unassisted by her all but unrivalled wisdom." It is easy for the ordinary worldly cynicism to curl a sceptical lip over sentences like these. There may be exaggeration of sentiment, the necessary and inevitable reaction of a man who was trained according to the "dry light" of so unimpressionable a man as James Mill, the father; but the passage quoted is not the only one in which John Stuart Mill proclaims his unhesitating [Pg xii] belief in the intellectual influence of his wife. The treatise on Liberty was written especially under her authority and encouragement, but there are many earlier references to the power which she exercised over his mind. Mill was introduced to her as early as 1831, at a dinner-party at Mr. Taylor's house, where were present, amongst others, Roebuck, W. J. Fox, and Miss Harriet Martineau. The acquaintance rapidly ripened into intimacy and the intimacy into friendship, and Mill was never weary of expatiating on all the advantages of so singular a relationship. In some of the presentation copies of his work on Political Economy , he wrote the following dedication:—"To Mrs. John Taylor, who, of all persons known to the author, is the most highly qualified either to originate or to appreciate speculation on social advancement, this work is with the highest respect and esteem dedicated." An article on the enfranchisement of women was made the occasion for another encomium. We shall hardly be wrong in attributing a much later book, The Subjection of Women , published in 1869, to the influence wielded by Mrs. Taylor. Finally, the pages of the Autobiography ring with the dithyrambic praise of his "almost infallible counsellor."

The facts of this remarkable intimacy can easily be stated. The deductions are more difficult. There is no question that Mill's infatuation was the cause of considerable trouble to his acquaintances and friends. His father openly taxed him with being in love with another man's wife. Roebuck, Mrs. Grote, Mrs. Austin, Miss Harriet Martineau were amongst those who suffered because they made some allusion to a forbidden subject. Mrs. Taylor lived with her daughter in a lodging in the country; but in 1851 her husband died, and then Mill made her his wife. Opinions were widely divergent as to her merits; but every one agreed that up to the time of her death, in 1858, Mill was wholly lost to his friends. George Mill, one of Mill's younger brothers, gave it as his opinion that she was a clever and remarkable woman, but "nothing like what John took her to be." Carlyle, in his reminiscences, described her with ambiguous epithets. She was "vivid," "iridescent," "pale and passionate and sad-looking, a living-romance heroine of the royalist volition and questionable destiny." It is not possible to make much of a judgment like this, but we get on more certain ground when we discover that Mrs. Carlyle said on one occasion [Pg xiv] that "she is thought to be dangerous," and that Carlyle added that she was worse than dangerous, she was patronising. The occasion when Mill and his wife were brought into close contact with the Carlyles is well known. The manuscript of the first volume of the French Revolution had been lent to Mill, and was accidentally burnt by Mrs. Mill's servant. Mill and his wife drove up to Carlyle's door, the wife speechless, the husband so full of conversation that he detained Carlyle with desperate attempts at loquacity for two hours. But Dr. Garnett tells us, in his Life of Carlyle , that Mill made a substantial reparation for the calamity for which he was responsible by inducing the aggrieved author to accept half of the £200 which he offered. Mrs. Mill, as I have said, died in 1858, after seven years of happy companionship with her husband, and was buried at Avignon. The inscription which Mill wrote for her grave is too characteristic to be omitted:—"Her great and loving heart, her noble soul, her clear, powerful, original, and comprehensive intellect, made her the guide and support, the instructor in wisdom and the example in goodness, as she was the sole earthly delight of those who had the happiness to belong to her. As earnest for [Pg xv] all public good as she was generous and devoted to all who surrounded her, her influence has been felt in many of the greatest improvements of the age, and will be in those still to come. Were there even a few hearts and intellects like hers, this earth would already become the hoped-for Heaven." These lines prove the intensity of Mill's feeling, which is not afraid of abundant verbiage; but they also prove that he could not imagine what the effect would be on others, and, as Grote said, only Mill's reputation could survive these and similar displays.

Every one will judge for himself of this romantic episode in Mill's career, according to such experience as he may possess of the philosophic mind and of the value of these curious but not infrequent relationships. It may have been a piece of infatuation, or, if we prefer to say so, it may have been the most gracious and the most human page in Mill's career. Mrs. Mill may have flattered her husband's vanity by echoing his opinions, or she may have indeed been an Egeria, full of inspiration and intellectual helpfulness. What usually happens in these cases,—although the philosopher himself, through his belief in the [Pg xvi] equality of the sexes, was debarred from thinking so,—is the extremely valuable action and reaction of two different classes and orders of mind. To any one whose thoughts have been occupied with the sphere of abstract speculation, the lively and vivid presentment of concrete fact comes as a delightful and agreeable shock. The instinct of the woman often enables her not only to apprehend but to illustrate a truth for which she would be totally unable to give the adequate philosophic reasoning. On the other hand, the man, with the more careful logical methods and the slow processes of formal reasoning, is apt to suppose that the happy intuition which leaps to the conclusion is really based on the intellectual processes of which he is conscious in his own case. Thus both parties to the happy contract are equally pleased. The abstract truth gets the concrete illustration; the concrete illustration finds its proper foundation in a series of abstract inquiries. Perhaps Carlyle's epithets of "iridescent" and "vivid" refer incidentally to Mrs. Mill's quick perceptiveness, and thus throw a useful light on the mutual advantages of the common work of husband and wife. But it savours almost of impertinence even to attempt to lift the veil on [Pg xvii] a mystery like this. It is enough to say, perhaps, that however much we may deplore the exaggeration of Mill's references to his wife, we recognise that, for whatever reason, the pair lived an ideally happy life.

It still, however, remains to estimate the extent to which Mrs. Taylor, both before and after her marriage with Mill, made actual contributions to his thoughts and his public work. Here I may be perhaps permitted to avail myself of what I have already written in a previous work. [1] Mill gives us abundant help in this matter in the Autobiography . When first he knew her, his thoughts were turning to the subject of Logic. But his published work on the subject owed nothing to her, he tells us, in its doctrines. It was Mill's custom to write the whole of a book so as to get his general scheme complete, and then laboriously to re-write it in order to perfect the phrases and the composition. Doubtless Mrs. Taylor was of considerable help to him as a critic of style. But to be a critic of doctrine she was hardly qualified. Mill has made some clear admissions on this point. "The only actual revolution which has ever taken place in my modes of thinking was [Pg xviii] already complete," [2] he says, before her influence became paramount. There is a curiously humble estimate of his own powers (to which Dr. Bain has called attention), which reads at first sight as if it contradicted this. "During the greater part of my literary life I have performed the office in relation to her, which, from a rather early period, I had considered as the most useful part that I was qualified to take in the domain of thought, that of an interpreter of original thinkers, and mediator between them and the public." So far it would seem that Mill had sat at the feet of his oracle; but observe the highly remarkable exception which is made in the following sentence:—"For I had always a humble opinion of my own powers as an original thinker, except in abstract science (logic, metaphysics, and the theoretic principles of political economy and politics.) " [3] If Mill then was an original thinker in logic, metaphysics, and the science of economy and politics, it is clear that he had not learnt these from her lips. And to most men logic and metaphysics may be safely taken as forming a domain in which originality of thought, if it can be honestly professed, is a sufficient title of distinction.

Mrs. Taylor's assistance in the Political Economy is confined to certain definite points. The purely scientific part was, we are assured, not learnt from her. "But it was chiefly her influence which gave to the book that general tone by which it is distinguished from all previous expositions of political economy that had any pretensions to be scientific, and which has made it so useful in conciliating minds which those previous expositions had repelled. This tone consisted chiefly in making the proper distinction between the laws of the production of wealth, which are real laws of Nature, dependent on the properties of objects, and the modes of its distribution, which, subject to certain conditions, depend on human will.... I had indeed partially learnt this view of things from the thoughts awakened in me by the speculations of St. Simonians ; but it was made a living principle, pervading and animating the book, by my wife's promptings." [4] The part which is italicised is noticeable. Here, as elsewhere, Mill thinks out the matter by himself; the concrete form of the thoughts is suggested or prompted by the wife. Apart from this "general tone," Mill tells us that there was a [Pg xx] specific contribution. "The chapter which has had a greater influence on opinion than all the rest, that on the Probable Future of the Labouring Classes, is entirely due to her. In the first draft of the book that chapter did not exist. She pointed out the need of such a chapter, and the extreme imperfection of the book without it; she was the cause of my writing it." From this it would appear that she gave Mill that tendency to Socialism which, while it lends a progressive spirit to his speculations on politics, at the same time does not manifestly accord with his earlier advocacy of peasant proprietorships. Nor, again, is it, on the face of it, consistent with those doctrines of individual liberty which, aided by the intellectual companionship of his wife, he propounded in a later work. The ideal of individual freedom is not the ideal of Socialism, just as that invocation of governmental aid to which the Socialist resorts is not consistent with the theory of laisser-faire . Yet Liberty was planned by Mill and his wife in concert. Perhaps a slight visionariness of speculation was no less the attribute of Mrs. Mill than an absence of rigid logical principles. Be this as it may, she undoubtedly checked the half-recognised leanings [Pg xxi] of her husband in the direction of Coleridge and Carlyle. Whether this was an instance of her steadying influence, [5] or whether it added one more unassimilated element to Mill's diverse intellectual sustenance, may be wisely left an open question. We cannot, however, be wrong in attributing to her the parentage of one book of Mill, The Subjection of Women . It is true that Mill had before learnt that men and women ought to be equal in legal, political, social, and domestic relations. This was a point on which he had already fallen foul of his father's essay on Government . But Mrs. Taylor had actually written on this very point, and the warmth and fervour of Mill's denunciations of women's servitude were unmistakably caught from his wife's view of the practical disabilities entailed by the feminine position.

Liberty was published in 1859, when the nineteenth century was half over, but in its general spirit and in some of its special tendencies the little tract belongs rather to the standpoint of the eighteenth century than to that which saw its birth. In many of his [Pg xxii] speculations John Stuart Mill forms a sort of connecting link between the doctrines of the earlier English empirical school and those which we associate with the name of Mr. Herbert Spencer. In his Logic , for instance, he represents an advance on the theories of Hume, and yet does not see how profoundly the victories of Science modify the conclusions of the earlier thinker. Similarly, in his Political Economy , he desires to improve and to enlarge upon Ricardo, and yet does not advance so far as the modifications of political economy by Sociology, indicated by some later—and especially German—speculations on the subject. In the tract on Liberty , Mill is advocating the rights of the individual as against Society at the very opening of an era that was rapidly coming to the conclusion that the individual had no absolute rights against Society. The eighteenth century view is that individuals existed first, each with their own special claims and responsibilities; that they deliberately formed a Social State, either by a contract or otherwise; and that then finally they limited their own action out of regard for the interests of the social organism thus arbitrarily produced. This is hardly the view of the nineteenth century. It is possible [Pg xxiii] that logically the individual is prior to the State; historically and in the order of Nature, the State is prior to the individual. In other words, such rights as every single personality possesses in a modern world do not belong to him by an original ordinance of Nature, but are slowly acquired in the growth and development of the social state. It is not the truth that individual liberties were forfeited by some deliberate act when men made themselves into a Commonwealth. It is more true to say, as Aristotle said long ago, that man is naturally a political animal, that he lived under strict social laws as a mere item, almost a nonentity, as compared with the Order, Society, or Community to which he belonged, and that such privileges as he subsequently acquired have been obtained in virtue of his growing importance as a member of a growing organisation. But if this is even approximately true, it seriously restricts that liberty of the individual for which Mill pleads. The individual has no chance, because he has no rights, against the social organism. Society can punish him for acts or even opinions which are anti-social in character. His virtue lies in recognising the intimate communion with his fellows. His sphere of activity is bounded by [Pg xxiv] the common interest. Just as it is an absurd and exploded theory that all men are originally equal, so it is an ancient and false doctrine to protest that a man has an individual liberty to live and think as he chooses in any spirit of antagonism to that larger body of which he forms an insignificant part.

Nowadays this view of Society and of its development, which we largely owe to the Philosophie Positive of M. Auguste Comte, is so familiar and possibly so damaging to the individual initiative, that it becomes necessary to advance and proclaim the truth which resides in an opposite theory. All progress, as we are aware, depends on the joint process of integration and differentiation; synthesis, analysis, and then a larger synthesis seem to form the law of development. If it ever comes to pass that Society is tyrannical in its restrictions of the individual, if, as for instance in some forms of Socialism, based on deceptive analogies of Nature's dealings, the type is everything and the individual nothing, it must be confidently urged in answer that the fuller life of the future depends on the manifold activities, even though they may be antagonistic, of the individual. In England, at all events, we know that [Pg xxv] government in all its different forms, whether as King, or as a caste of nobles, or as an oligarchical plutocracy, or even as trades unions, is so dwarfing in its action that, for the sake of the future, the individual must revolt. Just as our former point of view limited the value of Mill's treatise on Liberty , so these considerations tend to show its eternal importance. The omnipotence of Society means a dead level of uniformity. The claim of the individual to be heard, to say what he likes, to do what he likes, to live as he likes, is absolutely necessary, not only for the variety of elements without which life is poor, but also for the hope of a future age. So long as individual initiative and effort are recognised as a vital element in English history, so long will Mill's Liberty , which he confesses was based on a suggestion derived from Von Humboldt, remain as an indispensable contribution to the speculations, and also to the health and sanity, of the world.

What his wife really was to Mill, we shall, perhaps, never know. But that she was an actual and vivid force, which roused the latent enthusiasm of his nature, we have abundant evidence. And when she died at Avignon, [Pg xxvi] though his friends may have regained an almost estranged companionship, Mill was, personally, the poorer. Into the sorrow of that bereavement we cannot enter: we have no right or power to draw the veil. It is enough to quote the simple words, so eloquent of an unspoken grief—"I can say nothing which could describe, even in the faintest manner, what that loss was and is. But because I know that she would have wished it, I endeavour to make the best of what life I have left, and to work for her purposes with such diminished strength as can be derived from thoughts of her, and communion with her memory."

W. L. COURTNEY.

London , July 5th, 1901 .

[1] Life of John Stuart Mill , chapter vi. (Walter Scott.)

[2] Autobiography , p. 190.

[3] Ibid. , p. 242.

[4] Autobiography , pp. 246, 247.

[5] Cf. an instructive page in the Autobiography , p. 252.

[Pg xxviii]

The grand, leading principle, towards which every argument unfolded in these pages directly converges, is the absolute and essential importance of human development in its richest diversity.— Wilhelm Von Humboldt : Sphere and Duties of Government .

ON LIBERTY.

CHAPTER I. INTRODUCTORY.

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. A question seldom stated, and hardly ever discussed, in general terms, but which profoundly influences the practical controversies of the age by its latent presence, and is likely soon to make itself recognised as the vital question of the future. It is so far from being new, that in a certain sense, it has divided mankind, almost from the remotest ages; but in the stage of progress into which the more civilised portions of the species have now [Pg 2] entered, it presents itself under new conditions, and requires a different and more fundamental treatment.

The struggle between Liberty and Authority is the most conspicuous feature in the portions of history with which we are earliest familiar, particularly in that of Greece, Rome, and England. But in old times this contest was between subjects, or some classes of subjects, and the government. By liberty, was meant protection against the tyranny of the political rulers. The rulers were conceived (except in some of the popular governments of Greece) as in a necessarily antagonistic position to the people whom they ruled. They consisted of a governing One, or a governing tribe or caste, who derived their authority from inheritance or conquest, who, at all events, did not hold it at the pleasure of the governed, and whose supremacy men did not venture, perhaps did not desire, to contest, whatever precautions might be taken against its oppressive exercise. Their power was regarded as necessary, but also as highly dangerous; as a weapon which they would attempt to use against their subjects, no less than against external enemies. To prevent the weaker members of the community from being preyed upon by innumerable vultures, it was needful that there [Pg 3] should be an animal of prey stronger than the rest, commissioned to keep them down. But as the king of the vultures would be no less bent upon preying on the flock than any of the minor harpies, it was indispensable to be in a perpetual attitude of defence against his beak and claws. The aim, therefore, of patriots, was to set limits to the power which the ruler should be suffered to exercise over the community; and this limitation was what they meant by liberty. It was attempted in two ways. First, by obtaining a recognition of certain immunities, called political liberties or rights, which it was to be regarded as a breach of duty in the ruler to infringe, and which if he did infringe, specific resistance, or general rebellion, was held to be justifiable. A second, and generally a later expedient, was the establishment of constitutional checks; by which the consent of the community, or of a body of some sort, supposed to represent its interests, was made a necessary condition to some of the more important acts of the governing power. To the first of these modes of limitation, the ruling power, in most European countries, was compelled, more or less, to submit. It was not so with the second; and to attain this, or when already in some degree possessed, to attain it more completely, became [Pg 4] everywhere the principal object of the lovers of liberty. And so long as mankind were content to combat one enemy by another, and to be ruled by a master, on condition of being guaranteed more or less efficaciously against his tyranny, they did not carry their aspirations beyond this point.

A time, however, came, in the progress of human affairs, when men ceased to think it a necessity of nature that their governors should be an independent power, opposed in interest to themselves. It appeared to them much better that the various magistrates of the State should be their tenants or delegates, revocable at their pleasure. In that way alone, it seemed, could they have complete security that the powers of government would never be abused to their disadvantage. By degrees, this new demand for elective and temporary rulers became the prominent object of the exertions of the popular party, wherever any such party existed; and superseded, to a considerable extent, the previous efforts to limit the power of rulers. As the struggle proceeded for making the ruling power emanate from the periodical choice of the ruled, some persons began to think that too much importance had been attached to the limitation [Pg 5] of the power itself. That (it might seem) was a resource against rulers whose interests were habitually opposed to those of the people. What was now wanted was, that the rulers should be identified with the people; that their interest and will should be the interest and will of the nation. The nation did not need to be protected against its own will. There was no fear of its tyrannising over itself. Let the rulers be effectually responsible to it, promptly removable by it, and it could afford to trust them with power of which it could itself dictate the use to be made. Their power was but the nation's own power, concentrated, and in a form convenient for exercise. This mode of thought, or rather perhaps of feeling, was common among the last generation of European liberalism, in the Continental section of which it still apparently predominates. Those who admit any limit to what a government may do, except in the case of such governments as they think ought not to exist, stand out as brilliant exceptions among the political thinkers of the Continent. A similar tone of sentiment might by this time have been prevalent in our own country, if the circumstances which for a time encouraged it, had continued unaltered.

But, in political and philosophical theories, as [Pg 6] well as in persons, success discloses faults and infirmities which failure might have concealed from observation. The notion, that the people have no need to limit their power over themselves, might seem axiomatic, when popular government was a thing only dreamed about, or read of as having existed at some distant period of the past. Neither was that notion necessarily disturbed by such temporary aberrations as those of the French Revolution, the worst of which were the work of a usurping few, and which, in any case, belonged, not to the permanent working of popular institutions, but to a sudden and convulsive outbreak against monarchical and aristocratic despotism. In time, however, a democratic republic came to occupy a large portion of the earth's surface, and made itself felt as one of the most powerful members of the community of nations; and elective and responsible government became subject to the observations and criticisms which wait upon a great existing fact. It was now perceived that such phrases as "self-government," and "the power of the people over themselves," do not express the true state of the case. The "people" who exercise the power are not always the same people with those over whom it is exercised; and the "self-government" spoken of [Pg 7] is not the government of each by himself, but of each by all the rest. The will of the people, moreover, practically means, the will of the most numerous or the most active part of the people; the majority, or those who succeed in making themselves accepted as the majority: the people, consequently, may desire to oppress a part of their number; and precautions are as much needed against this, as against any other abuse of power. The limitation, therefore, of the power of government over individuals, loses none of its importance when the holders of power are regularly accountable to the community, that is, to the strongest party therein. This view of things, recommending itself equally to the intelligence of thinkers and to the inclination of those important classes in European society to whose real or supposed interests democracy is adverse, has had no difficulty in establishing itself; and in political speculations "the tyranny of the majority" is now generally included among the evils against which society requires to be on its guard.

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 [Pg 8] —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. Protection, therefore, against the tyranny of the magistrate is not enough: there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence: and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of [Pg 9] human affairs, as protection against political despotism.

But though this proposition is not likely to be contested in general terms, the practical question, where to place the limit—how to make the fitting adjustment between individual independence and social control—is a subject on which nearly everything remains to be done. All that makes existence valuable to any one, depends on the enforcement of restraints upon the actions of other people. Some rules of conduct, therefore, must be imposed, by law in the first place, and by opinion on many things which are not fit subjects for the operation of law. What these rules should be, is the principal question in human affairs; but if we except a few of the most obvious cases, it is one of those which least progress has been made in resolving. No two ages, and scarcely any two countries, have decided it alike; and the decision of one age or country is a wonder to another. Yet the people of any given age and country no more suspect any difficulty in it, than if it were a subject on which mankind had always been agreed. The rules which obtain among themselves appear to them self-evident and self-justifying. This all but universal illusion is one of the examples of the magical influence of custom, [Pg 10] which is not only, as the proverb says, a second nature, but is continually mistaken for the first. The effect of custom, in preventing any misgiving respecting the rules of conduct which mankind impose on one another, is all the more complete because the subject is one on which it is not generally considered necessary that reasons should be given, either by one person to others, or by each to himself. People are accustomed to believe, and have been encouraged in the belief by some who aspire to the character of philosophers, that their feelings, on subjects of this nature, are better than reasons, and render reasons unnecessary. The practical principle which guides them to their opinions on the regulation of human conduct, is the feeling in each person's mind that everybody should be required to act as he, and those with whom he sympathises, would like them to act. No one, indeed, acknowledges to himself that his standard of judgment is his own liking; but an opinion on a point of conduct, not supported by reasons, can only count as one person's preference; and if the reasons, when given, are a mere appeal to a similar preference felt by other people, it is still only many people's liking instead of one. To an ordinary man, however, his own preference, thus supported, is not only a perfectly satisfactory [Pg 11] reason, but the only one he generally has for any of his notions of morality, taste, or propriety, which are not expressly written in his religious creed; and his chief guide in the interpretation even of that. Men's opinions, accordingly, on what is laudable or blamable, are affected by all the multifarious causes which influence their wishes in regard to the conduct of others, and which are as numerous as those which determine their wishes on any other subject. Sometimes their reason—at other times their prejudices or superstitions: often their social affections, not seldom their anti-social ones, their envy or jealousy, their arrogance or contemptuousness: but most commonly, their desires or fears for themselves—their legitimate or illegitimate self-interest. Wherever there is an ascendant class, a large portion of the morality of the country emanates from its class interests, and its feelings of class superiority. The morality between Spartans and Helots, between planters and negroes, between princes and subjects, between nobles and roturiers, between men and women, has been for the most part the creation of these class interests and feelings: and the sentiments thus generated, react in turn upon the moral feelings of the members of the ascendant class, in their relations among themselves. Where, on the other [Pg 12] hand, a class, formerly ascendant, has lost its ascendancy, or where its ascendancy is unpopular, the prevailing moral sentiments frequently bear the impress of an impatient dislike of superiority. Another grand determining principle of the rules of conduct, both in act and forbearance, which have been enforced by law or opinion, has been the servility of mankind towards the supposed preferences or aversions of their temporal masters, or of their gods. This servility, though essentially selfish, is not hypocrisy; it gives rise to perfectly genuine sentiments of abhorrence; it made men burn magicians and heretics. Among so many baser influences, the general and obvious interests of society have of course had a share, and a large one, in the direction of the moral sentiments: less, however, as a matter of reason, and on their own account, than as a consequence of the sympathies and antipathies which grew out of them: and sympathies and antipathies which had little or nothing to do with the interests of society, have made themselves felt in the establishment of moralities with quite as great force.

The likings and dislikings of society, or of some powerful portion of it, are thus the main thing which has practically determined the rules laid down for general observance, under the penalties [Pg 13] of law or opinion. And in general, those who have been in advance of society in thought and feeling have left this condition of things unassailed in principle, however they may have come into conflict with it in some of its details. They have occupied themselves rather in inquiring what things society ought to like or dislike, than in questioning whether its likings or dislikings should be a law to individuals. They preferred endeavouring to alter the feelings of mankind on the particular points on which they were themselves heretical, rather than make common cause in defence of freedom, with heretics generally. The only case in which the higher ground has been taken on principle and maintained with consistency, by any but an individual here and there, is that of religious belief: a case instructive in many ways, and not least so as forming a most striking instance of the fallibility of what is called the moral sense: for the odium theologicum , in a sincere bigot, is one of the most unequivocal cases of moral feeling. Those who first broke the yoke of what called itself the Universal Church, were in general as little willing to permit difference of religious opinion as that church itself. But when the heat of the conflict was over, without giving a complete victory to any party, and each church or [Pg 14] sect was reduced to limit its hopes to retaining possession of the ground it already occupied; minorities, seeing that they had no chance of becoming majorities, were under the necessity of pleading to those whom they could not convert, for permission to differ. It is accordingly on this battle-field, almost solely, that the rights of the individual against society have been asserted on broad grounds of principle, and the claim of society to exercise authority over dissentients, openly controverted. The great writers to whom the world owes what religious liberty it possesses, have mostly asserted freedom of conscience as an indefeasible right, and denied absolutely that a human being is accountable to others for his religious belief. Yet so natural to mankind is intolerance in whatever they really care about, that religious freedom has hardly anywhere been practically realised, except where religious indifference, which dislikes to have its peace disturbed by theological quarrels, has added its weight to the scale. In the minds of almost all religious persons, even in the most tolerant countries, the duty of toleration is admitted with tacit reserves. One person will bear with dissent in matters of church government, but not of dogma; another can tolerate everybody, short of [Pg 15] a Papist or a Unitarian; another, every one who believes in revealed religion; a few extend their charity a little further, but stop at the belief in a God and in a future state. Wherever the sentiment of the majority is still genuine and intense, it is found to have abated little of its claim to be obeyed.

In England, from the peculiar circumstances of our political history, though the yoke of opinion is perhaps heavier, that of law is lighter, than in most other countries of Europe; and there is considerable jealousy of direct interference, by the legislative or the executive power, with private conduct; not so much from any just regard for the independence of the individual, as from the still subsisting habit of looking on the government as representing an opposite interest to the public. The majority have not yet learnt to feel the power of the government their power, or its opinions their opinions. When they do so, individual liberty will probably be as much exposed to invasion from the government, as it already is from public opinion. But, as yet, there is a considerable amount of feeling ready to be called forth against any attempt of the law to control individuals in things in which they have not hitherto been accustomed to be controlled by it; [Pg 16] and this with very little discrimination as to whether the matter is, or is not, within the legitimate sphere of legal control; insomuch that the feeling, highly salutary on the whole, is perhaps quite as often misplaced as well grounded in the particular instances of its application. There is, in fact, no recognised principle by which the propriety or impropriety of government interference is customarily tested. People decide according to their personal preferences. Some, whenever they see any good to be done, or evil to be remedied, would willingly instigate the government to undertake the business; while others prefer to bear almost any amount of social evil, rather than add one to the departments of human interests amenable to governmental control. And men range themselves on one or the other side in any particular case, according to this general direction of their sentiments; or according to the degree of interest which they feel in the particular thing which it is proposed that the government should do, or according to the belief they entertain that the government would, or would not, do it in the manner they prefer; but very rarely on account of any opinion to which they consistently adhere, as to what things are fit to be done by a government. And it seems to me that in [Pg 17] consequence of this absence of rule or principle, one side is at present as often wrong as the other; the interference of government is, with about equal frequency, improperly invoked and improperly condemned.

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, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. 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. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with [Pg 18] any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

It is, perhaps, hardly necessary to say that this doctrine is meant to apply only to human beings in the maturity of their faculties. We are not speaking of children, or of young persons below the age which the law may fix as that of manhood or womanhood. Those who are still in a state to require being taken care of by others, must be protected against their own actions as well as against external injury. 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 [Pg 19] mode of government in dealing with barbarians, provided the end be their improvement, and the means justified by actually effecting that end. Liberty, as a principle, has no application to any state of things anterior to the time when mankind have become capable of being improved by free and equal discussion. Until then, there is nothing for them but implicit obedience to an Akbar or a Charlemagne, if they are so fortunate as to find one. But as soon as mankind have attained the capacity of being guided to their own improvement by conviction or persuasion (a period long since reached in all nations with whom we need here concern ourselves), compulsion, either in the direct form or in that of pains and penalties for non-compliance, is no longer admissible as a means to their own good, and justifiable only for the security of others.

It is proper to state that I forego any advantage which could be derived to my argument from the idea of abstract right, as a thing independent of utility. I regard utility as the ultimate appeal on all ethical questions; but it must be utility in the largest sense, grounded on the permanent interests of man as a progressive being. Those interests, I contend, authorise the subjection of individual spontaneity to external control, only in respect to [Pg 20] those actions of each, which concern the interest of other people. If any one does an act hurtful to others, there is a primâ facie case for punishing him, by law, or, where legal penalties are not safely applicable, by general disapprobation. There are also many positive acts for the benefit of others, which he may rightfully be compelled to perform; such as, to give evidence in a court of justice; to bear his fair share in the common defence, or in any other joint work necessary to the interest of the society of which he enjoys the protection; and to perform certain acts of individual beneficence, such as saving a fellow-creature's life, or interposing to protect the defenceless against ill-usage, things which whenever it is obviously a man's duty to do, he may rightfully be made responsible to society for not doing. A person may cause evil to others not only by his actions but by his inaction, and in either case he is justly accountable to them for the injury. The latter case, it is true, requires a much more cautious exercise of compulsion than the former. To make any one answerable for doing evil to others, is the rule; to make him answerable for not preventing evil, is, comparatively speaking, the exception. Yet there are many cases clear enough and grave enough to justify that exception. In all things which regard [Pg 21] the external relations of the individual, he is de jure amenable to those whose interests are concerned, and if need be, to society as their protector. There are often good reasons for not holding him to the responsibility; but these reasons must arise from the special expediencies of the case: either because it is a kind of case in which he is on the whole likely to act better, when left to his own discretion, than when controlled in any way in which society have it in their power to control him; or because the attempt to exercise control would produce other evils, greater than those which it would prevent. When such reasons as these preclude the enforcement of responsibility, the conscience of the agent himself should step into the vacant judgment seat, and protect those interests of others which have no external protection; judging himself all the more rigidly, because the case does not admit of his being made accountable to the judgment of his fellow-creatures.

But there is a sphere of action in which society, as distinguished from the individual, has, if any, only an indirect interest; comprehending all that portion of a person's life and conduct which affects only himself, or if it also affects others, only with their free, voluntary, and undeceived consent and [Pg 22] participation. When I say only himself, I mean directly, and in the first instance: for whatever affects himself, may affect others through himself; and the objection which may be grounded on this contingency, will receive consideration in the sequel. 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 [Pg 23] 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. The only freedom which deserves the name, is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily, or mental and spiritual. Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest.

Though this doctrine is anything but new, and, to some persons, may have the air of a truism, there is no doctrine which stands more directly opposed to the general tendency of existing opinion and practice. Society has expended fully as much effort in the attempt (according to its lights) to compel people to conform to its notions [Pg 24] of personal, as of social excellence. The ancient commonwealths thought themselves entitled to practise, and the ancient philosophers countenanced, the regulation of every part of private conduct by public authority, on the ground that the State had a deep interest in the whole bodily and mental discipline of every one of its citizens; a mode of thinking which may have been admissible in small republics surrounded by powerful enemies, in constant peril of being subverted by foreign attack or internal commotion, and to which even a short interval of relaxed energy and self-command might so easily be fatal, that they could not afford to wait for the salutary permanent effects of freedom. In the modern world, the greater size of political communities, and above all, the separation between spiritual and temporal authority (which placed the direction of men's consciences in other hands than those which controlled their worldly affairs), prevented so great an interference by law in the details of private life; but the engines of moral repression have been wielded more strenuously against divergence from the reigning opinion in self-regarding, than even in social matters; religion, the most powerful of the elements which have entered into the formation [Pg 25] of moral feeling, having almost always been governed either by the ambition of a hierarchy, seeking control over every department of human conduct, or by the spirit of Puritanism. And some of those modern reformers who have placed themselves in strongest opposition to the religions of the past, have been noway behind either churches or sects in their assertion of the right of spiritual domination: M. Comte, in particular, whose social system, as unfolded in his Traité de Politique Positive , aims at establishing (though by moral more than by legal appliances) a despotism of society over the individual, surpassing anything contemplated in the political ideal of the most rigid disciplinarian among the ancient philosophers.

Apart from the peculiar tenets of individual thinkers, there is also in the world at large an increasing inclination to stretch unduly the powers of society over the individual, both by the force of opinion and even by that of legislation: and as the tendency of all the changes taking place in the world is to strengthen society, and diminish the power of the individual, this encroachment is not one of the evils which tend spontaneously to disappear, but, on the contrary, to grow more and more formidable. The disposition of mankind, [Pg 26] whether as rulers or as fellow-citizens to impose their own opinions and inclinations as a rule of conduct on others, is so energetically supported by some of the best and by some of the worst feelings incident to human nature, that it is hardly ever kept under restraint by anything but want of power; and as the power is not declining, but growing, unless a strong barrier of moral conviction can be raised against the mischief, we must expect, in the present circumstances of the world, to see it increase.

It will be convenient for the argument, if, instead of at once entering upon the general thesis, we confine ourselves in the first instance to a single branch of it, on which the principle here stated is, if not fully, yet to a certain point, recognised by the current opinions. This one branch is the Liberty of Thought: from which it is impossible to separate the cognate liberty of speaking and of writing. Although these liberties, to some considerable amount, form part of the political morality of all countries which profess religious toleration and free institutions, the grounds, both philosophical and practical, on which they rest, are perhaps not so familiar to the general mind, nor so thoroughly appreciated by many even of the leaders of opinion, as might [Pg 27] have been expected. Those grounds, when rightly understood, are of much wider application than to only one division of the subject, and a thorough consideration of this part of the question will be found the best introduction to the remainder. Those to whom nothing which I am about to say will be new, may therefore, I hope, excuse me, if on a subject which for now three centuries has been so often discussed, I venture on one discussion more.

CHAPTER II. OF THE LIBERTY OF THOUGHT AND DISCUSSION.

The time, it is to be hoped, is gone by, when any defence would be necessary of the "liberty of the press" as one of the securities against corrupt or tyrannical government. No argument, we may suppose, can now be needed, against permitting a legislature or an executive, not identified in interest with the people, to prescribe opinions to them, and determine what doctrines or what arguments they shall be allowed to hear. This aspect of the question, besides, has been so often and so triumphantly enforced by preceding writers, that it need not be specially insisted on in this place. Though the law of England, on the subject of the press, is as servile to this day as it was in the time of the Tudors, there is little danger of its being actually put in force against political discussion, except during some temporary panic, when fear of insurrection drives ministers and [Pg 29] judges from their propriety; [6] and, speaking generally, it is not, in constitutional countries, to be apprehended that the government, whether completely responsible to the people or not, will often attempt to control the expression of opinion, except when in doing so it makes itself the organ of the general intolerance of the public. Let us suppose, therefore, that the government is entirely at one with the people, and never thinks of exerting any power of coercion unless in agreement with what it conceives to be their voice. But I deny the right of the people to exercise such coercion, either by themselves or by their government. The power itself is illegitimate. The best [Pg 30] government has no more title to it than the worst. It is as noxious, or more noxious, when exerted in accordance with public opinion, than when in or opposition to it. If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind. Were an opinion a personal possession of no value except to the owner; if to be obstructed in the enjoyment of it were simply a private injury, it would make some difference whether the injury was inflicted only on a few persons or on [Pg 31] many. But the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.

It is necessary to consider separately these two hypotheses, each of which has a distinct branch of the argument corresponding to it. We can never be sure that the opinion we are endeavouring to stifle is a false opinion; and if we were sure, stifling it would be an evil still.

First: the opinion which it is attempted to suppress by authority may possibly be true. Those who desire to suppress it, of course deny its truth; but they are not infallible. They have no authority to decide the question for all mankind, and exclude every other person from the means of judging. To refuse a hearing to an opinion, because they are sure that it is false, is to assume that their certainty is the same thing as absolute certainty. All silencing of discussion is [Pg 32] an assumption of infallibility. Its condemnation may be allowed to rest on this common argument, not the worse for being common.

Unfortunately for the good sense of mankind, the fact of their fallibility is far from carrying the weight in their practical judgment, which is always allowed to it in theory; for while every one well knows himself to be fallible, few think it necessary to take any precautions against their own fallibility, or admit the supposition that any opinion, of which they feel very certain, may be one of the examples of the error to which they acknowledge themselves to be liable. Absolute princes, or others who are accustomed to unlimited deference, usually feel this complete confidence in their own opinions on nearly all subjects. People more happily situated, who sometimes hear their opinions disputed, and are not wholly unused to be set right when they are wrong, place the same unbounded reliance only on such of their opinions as are shared by all who surround them, or to whom they habitually defer: for in proportion to a man's want of confidence in his own solitary judgment, does he usually repose, with implicit trust, on the infallibility of "the world" in general. And the world, to each individual, means the part of it with which he comes in contact; his party, [Pg 33] his sect, his church, his class of society: the man may be called, by comparison, almost liberal and large-minded to whom it means anything so comprehensive as his own country or his own age. Nor is his faith in this collective authority at all shaken by his being aware that other ages, countries, sects, churches, classes, and parties have thought, and even now think, the exact reverse. He devolves upon his own world the responsibility of being in the right against the dissentient worlds of other people; and it never troubles him that mere accident has decided which of these numerous worlds is the object of his reliance, and that the same causes which make him a Churchman in London, would have made him a Buddhist or a Confucian in Pekin. Yet it is as evident in itself as any amount of argument can make it, that ages are no more infallible than individuals; every age having held many opinions which subsequent ages have deemed not only false but absurd; and it is as certain that many opinions, now general, will be rejected by future ages, as it is that many, once general, are rejected by the present.

The objection likely to be made to this argument, would probably take some such form as the following. There is no greater assumption of infallibility in forbidding the propagation of [Pg 34] error, than in any other thing which is done by public authority on its own judgment and responsibility. Judgment is given to men that they may use it. Because it may be used erroneously, are men to be told that they ought not to use it at all? To prohibit what they think pernicious, is not claiming exemption from error, but fulfilling the duty incumbent on them, although fallible, of acting on their conscientious conviction. If we were never to act on our opinions, because those opinions may be wrong, we should leave all our interests uncared for, and all our duties unperformed. An objection which applies to all conduct, can be no valid objection to any conduct in particular. It is the duty of governments, and of individuals, to form the truest opinions they can; to form them carefully, and never impose them upon others unless they are quite sure of being right. But when they are sure (such reasoners may say), it is not conscientiousness but cowardice to shrink from acting on their opinions, and allow doctrines which they honestly think dangerous to the welfare of mankind, either in this life or in another, to be scattered abroad without restraint, because other people, in less enlightened times, have persecuted opinions now believed to be true. Let us take [Pg 35] care, it may be said, not to make the same mistake: but governments and nations have made mistakes in other things, which are not denied to be fit subjects for the exercise of authority: they have laid on bad taxes, made unjust wars. Ought we therefore to lay on no taxes, and, under whatever provocation, make no wars? Men, and governments, must act to the best of their ability. There is no such thing as absolute certainty, but there is assurance sufficient for the purposes of human life. We may, and must, assume our opinion to be true for the guidance of our own conduct: and it is assuming no more when we forbid bad men to pervert society by the propagation of opinions which we regard as false and pernicious.

I answer that it is assuming very much more. There is the greatest difference between presuming an opinion to be true, because, with every opportunity for contesting it, it has not been refuted, and assuming its truth for the purpose of not permitting its refutation. Complete liberty of contradicting and disproving our opinion, is the very condition which justifies us in assuming its truth for purposes of action; and on no other terms can a being with human faculties have any rational assurance of being right.

When we consider either the history of opinion, or the ordinary conduct of human life, to what is it to be ascribed that the one and the other are no worse than they are? Not certainly to the inherent force of the human understanding; for, on any matter not self-evident, there are ninety-nine persons totally incapable of judging of it, for one who is capable; and the capacity of the hundredth person is only comparative; for the majority of the eminent men of every past generation held many opinions now known to be erroneous, and did or approved numerous things which no one will now justify. Why is it, then, that there is on the whole a preponderance among mankind of rational opinions and rational conduct? If there really is this preponderance—which there must be, unless human affairs are, and have always been, in an almost desperate state—it is owing to a quality of the human mind, the source of everything respectable in man either as an intellectual or as a moral being, namely, that his errors are corrigible. He is capable of rectifying his mistakes, by discussion and experience. Not by experience alone. There must be discussion, to show how experience is to be interpreted. Wrong opinions and practices gradually yield to fact and argument: but facts [Pg 37] and arguments, to produce any effect on the mind, must be brought before it. Very few facts are able to tell their own story, without comments to bring out their meaning. The whole strength and value, then, of human judgment, depending on the one property, that it can be set right when it is wrong, reliance can be placed on it only when the means of setting it right are kept constantly at hand. In the case of any person whose judgment is really deserving of confidence, how has it become so? Because he has kept his mind open to criticism of his opinions and conduct. Because it has been his practice to listen to all that could be said against him; to profit by as much of it as was just, and expound to himself, and upon occasion to others, the fallacy of what was fallacious. Because he has felt, that the only way in which a human being can make some approach to knowing the whole of a subject, is by hearing what can be said about it by persons of every variety of opinion, and studying all modes in which it can be looked at by every character of mind. No wise man ever acquired his wisdom in any mode but this; nor is it in the nature of human intellect to become wise in any other manner. The steady habit of correcting and completing his own opinion by collating it [Pg 38] with those of others, so far from causing doubt and hesitation in carrying it into practice, is the only stable foundation for a just reliance on it: for, being cognisant of all that can, at least obviously, be said against him, and having taken up his position against all gainsayers—knowing that he has sought for objections and difficulties, instead of avoiding them, and has shut out no light which can be thrown upon the subject from any quarter—he has a right to think his judgment better than that of any person, or any multitude, who have not gone through a similar process.

It is not too much to require that what the wisest of mankind, those who are best entitled to trust their own judgment, find necessary to warrant their relying on it, should be submitted to by that miscellaneous collection of a few wise and many foolish individuals, called the public. The most intolerant of churches, the Roman Catholic Church, even at the canonisation of a saint, admits, and listens patiently to, a "devil's advocate." The holiest of men, it appears, cannot be admitted to posthumous honours, until all that the devil could say against him is known and weighed. If even the Newtonian philosophy were not permitted to be questioned, mankind could not feel as complete assurance of its truth as they now do. The beliefs [Pg 39] which we have most warrant for, have no safeguard to rest on, but a standing invitation to the whole world to prove them unfounded. If the challenge is not accepted, or is accepted and the attempt fails, we are far enough from certainty still; but we have done the best that the existing state of human reason admits of; we have neglected nothing that could give the truth a chance of reaching us: if the lists are kept open, we may hope that if there be a better truth, it will be found when the human mind is capable of receiving it; and in the meantime we may rely on having attained such approach to truth, as is possible in our own day. This is the amount of certainty attainable by a fallible being, and this the sole way of attaining it.

Strange it is, that men should admit the validity of the arguments for free discussion, but object to their being "pushed to an extreme;" not seeing that unless the reasons are good for an extreme case, they are not good for any case. Strange that they should imagine that they are not assuming infallibility, when they acknowledge that there should be free discussion on all subjects which can possibly be doubtful , but think that some particular principle or doctrine should be forbidden to be questioned because it is so certain , [Pg 40] that is, because they are certain that it is certain. To call any proposition certain, while there is any one who would deny its certainty if permitted, but who is not permitted, is to assume that we ourselves, and those who agree with us, are the judges of certainty, and judges without hearing the other side.

In the present age—which has been described as "destitute of faith, but terrified at scepticism"—in which people feel sure, not so much that their opinions are true, as that they should not know what to do without them—the claims of an opinion to be protected from public attack are rested not so much on its truth, as on its importance to society. There are, it is alleged, certain beliefs, so useful, not to say indispensable to well-being, that it is as much the duty of governments to uphold those beliefs, as to protect any other of the interests of society. In a case of such necessity, and so directly in the line of their duty, something less than infallibility may, it is maintained, warrant, and even bind, governments, to act on their own opinion, confirmed by the general opinion of mankind. It is also often argued, and still oftener thought, that none but bad men would desire to weaken these salutary beliefs; and there can be nothing wrong, it is thought, in restraining bad [Pg 41] men, and prohibiting what only such men would wish to practise. This mode of thinking makes the justification of restraints on discussion not a question of the truth of doctrines, but of their usefulness; and flatters itself by that means to escape the responsibility of claiming to be an infallible judge of opinions. But those who thus satisfy themselves, do not perceive that the assumption of infallibility is merely shifted from one point to another. The usefulness of an opinion is itself matter of opinion: as disputable, as open to discussion, and requiring discussion as much, as the opinion itself. There is the same need of an infallible judge of opinions to decide an opinion to be noxious, as to decide it to be false, unless the opinion condemned has full opportunity of defending itself. And it will not do to say that the heretic may be allowed to maintain the utility or harmlessness of his opinion, though forbidden to maintain its truth. The truth of an opinion is part of its utility. If we would know whether or not it is desirable that a proposition should be believed, is it possible to exclude the consideration of whether or not it is true? In the opinion, not of bad men, but of the best men, no belief which is contrary to truth can be really useful: and can you prevent such men [Pg 42] from urging that plea, when they are charged with culpability for denying some doctrine which they are told is useful, but which they believe to be false? Those who are on the side of received opinions, never fail to take all possible advantage of this plea; you do not find them handling the question of utility as if it could be completely abstracted from that of truth: on the contrary, it is, above all, because their doctrine is "the truth," that the knowledge or the belief of it is held to be so indispensable. There can be no fair discussion of the question of usefulness, when an argument so vital may be employed on one side, but not on the other. And in point of fact, when law or public feeling do not permit the truth of an opinion to be disputed, they are just as little tolerant of a denial of its usefulness. The utmost they allow is an extenuation of its absolute necessity, or of the positive guilt of rejecting it.

In order more fully to illustrate the mischief of denying a hearing to opinions because we, in our own judgment, have condemned them, it will be desirable to fix down the discussion to a concrete case; and I choose, by preference, the cases which are least favourable to me—in which the argument against freedom of opinion, both on the score of truth and on that of utility, is considered the [Pg 43] strongest. Let the opinions impugned be the belief in a God and in a future state, or any of the commonly received doctrines of morality. To fight the battle on such ground, gives a great advantage to an unfair antagonist; since he will be sure to say (and many who have no desire to be unfair will say it internally), Are these the doctrines which you do not deem sufficiently certain to be taken under the protection of law? Is the belief in a God one of the opinions, to feel sure of which, you hold to be assuming infallibility? But I must be permitted to observe, that it is not the feeling sure of a doctrine (be it what it may) which I call an assumption of infallibility. It is the undertaking to decide that question for others , without allowing them to hear what can be said on the contrary side. And I denounce and reprobate this pretension not the less, if put forth on the side of my most solemn convictions. However positive any one's persuasion may be, not only of the falsity, but of the pernicious consequences—not only of the pernicious consequences, but (to adopt expressions which I altogether condemn) the immorality and impiety of an opinion; yet if, in pursuance of that private judgment, though backed by the public judgment of his country [Pg 44] or his contemporaries, he prevents the opinion from being heard in its defence, he assumes infallibility. And so far from the assumption being less objectionable or less dangerous because the opinion is called immoral or impious, this is the case of all others in which it is most fatal. These are exactly the occasions on which the men of one generation commit those dreadful mistakes, which excite the astonishment and horror of posterity. It is among such that we find the instances memorable in history, when the arm of the law has been employed to root out the best men and the noblest doctrines; with deplorable success as to the men, though some of the doctrines have survived to be (as if in mockery) invoked, in defence of similar conduct towards those who dissent from them , or from their received interpretation.

Mankind can hardly be too often reminded that there was once a man named Socrates, between whom and the legal authorities and public opinion of his time, there took place a memorable collision. Born in an age and country abounding in individual greatness, this man has been handed down to us by those who best knew both him and the age, as the most virtuous man in it; while we know him as the head and [Pg 45] prototype of all subsequent teachers of virtue, the source equally of the lofty inspiration of Plato and the judicious utilitarianism of Aristotle, " i maëstri di color che sanno ," the two headsprings of ethical as of all other philosophy. This acknowledged master of all the eminent thinkers who have since lived—whose fame, still growing after more than two thousand years, all but outweighs the whole remainder of the names which make his native city illustrious—was put to death by his countrymen, after a judicial conviction, for impiety and immorality. Impiety, in denying the gods recognised by the State; indeed his accuser asserted (see the "Apologia") that he believed in no gods at all. Immorality, in being, by his doctrines and instructions, a "corruptor of youth." Of these charges the tribunal, there is every ground for believing, honestly found him guilty, and condemned the man who probably of all then born had deserved best of mankind, to be put to death as a criminal.

To pass from this to the only other instance of judicial iniquity, the mention of which, after the condemnation of Socrates, would not be an anticlimax: the event which took place on Calvary rather more than eighteen hundred years [Pg 46] ago. The man who left on the memory of those who witnessed his life and conversation, such an impression of his moral grandeur, that eighteen subsequent centuries have done homage to him as the Almighty in person, was ignominiously put to death, as what? As a blasphemer. Men did not merely mistake their benefactor; they mistook him for the exact contrary of what he was, and treated him as that prodigy of impiety, which they themselves are now held to be, for their treatment of him. The feelings with which mankind now regard these lamentable transactions, especially the later of the two, render them extremely unjust in their judgment of the unhappy actors. These were, to all appearance, not bad men—not worse than men commonly are, but rather the contrary; men who possessed in a full, or somewhat more than a full measure, the religious, moral, and patriotic feelings of their time and people: the very kind of men who, in all times, our own included, have every chance of passing through life blameless and respected. The high-priest who rent his garments when the words were pronounced, which, according to all the ideas of his country, constituted the blackest guilt, was in all probability quite as sincere in his horror and indignation, as the generality of respectable and [Pg 47] pious men now are in the religious and moral sentiments they profess; and most of those who now shudder at his conduct, if they had lived in his time, and been born Jews, would have acted precisely as he did. Orthodox Christians who are tempted to think that those who stoned to death the first martyrs must have been worse men than they themselves are, ought to remember that one of those persecutors was Saint Paul.

Let us add one more example, the most striking of all, if the impressiveness of an error is measured by the wisdom and virtue of him who falls into it. If ever any one, possessed of power, had grounds for thinking himself the best and most enlightened among his cotemporaries, it was the Emperor Marcus Aurelius. Absolute monarch of the whole civilised world, he preserved through life not only the most unblemished justice, but what was less to be expected from his Stoical breeding, the tenderest heart. The few failings which are attributed to him, were all on the side of indulgence: while his writings, the highest ethical product of the ancient mind, differ scarcely perceptibly, if they differ at all, from the most characteristic teachings of Christ. This man, a better Christian in all but the dogmatic sense of the word, than almost any of the ostensibly [Pg 48] Christian sovereigns who have since reigned, persecuted Christianity. Placed at the summit of all the previous attainments of humanity, with an open, unfettered intellect, and a character which led him of himself to embody in his moral writings the Christian ideal, he yet failed to see that Christianity was to be a good and not an evil to the world, with his duties to which he was so deeply penetrated. Existing society he knew to be in a deplorable state. But such as it was, he saw, or thought he saw, that it was held together, and prevented from being worse, by belief and reverence of the received divinities. As a ruler of mankind, he deemed it his duty not to suffer society to fall in pieces; and saw not how, if its existing ties were removed, any others could be formed which could again knit it together. The new religion openly aimed at dissolving these ties: unless, therefore, it was his duty to adopt that religion, it seemed to be his duty to put it down. Inasmuch then as the theology of Christianity did not appear to him true or of divine origin; inasmuch as this strange history of a crucified God was not credible to him, and a system which purported to rest entirely upon a foundation to him so wholly unbelievable, could not be foreseen by him to be that renovating agency which, after [Pg 49] all abatements, it has in fact proved to be; the gentlest and most amiable of philosophers and rulers, under a solemn sense of duty, authorised the persecution of Christianity. To my mind this is one of the most tragical facts in all history. It is a bitter thought, how different a thing the Christianity of the world might have been, if the Christian faith had been adopted as the religion of the empire under the auspices of Marcus Aurelius instead of those of Constantine. But it would be equally unjust to him and false to truth, to deny, that no one plea which can be urged for punishing anti-Christian teaching, was wanting to Marcus Aurelius for punishing, as he did, the propagation of Christianity. No Christian more firmly believes that Atheism is false, and tends to the dissolution of society, than Marcus Aurelius believed the same things of Christianity; he who, of all men then living, might have been thought the most capable of appreciating it. Unless any one who approves of punishment for the promulgation of opinions, flatters himself that he is a wiser and better man than Marcus Aurelius—more deeply versed in the wisdom of his time, more elevated in his intellect above it—more earnest in his search for truth, or more single-minded in his devotion to it when found;—let him abstain from that assumption of [Pg 50] the joint infallibility of himself and the multitude, which the great Antoninus made with so unfortunate a result.

Aware of the impossibility of defending the use of punishment for restraining irreligious opinions, by any argument which will not justify Marcus Antoninus, the enemies of religious freedom, when hard pressed, occasionally accept this consequence, and say, with Dr. Johnson, that the persecutors of Christianity were in the right; that persecution is an ordeal through which truth ought to pass, and always passes successfully, legal penalties being, in the end, powerless against truth, though sometimes beneficially effective against mischievous errors. This is a form of the argument for religious intolerance, sufficiently remarkable not to be passed without notice.

A theory which maintains that truth may justifiably be persecuted because persecution cannot possibly do it any harm, cannot be charged with being intentionally hostile to the reception of new truths; but we cannot commend the generosity of its dealing with the persons to whom mankind are indebted for them. To discover to the world something which deeply concerns it, and of which it was previously ignorant; to prove to it that it had been mistaken on some vital point [Pg 51] of temporal or spiritual interest, is as important a service as a human being can render to his fellow-creatures, and in certain cases, as in those of the early Christians and of the Reformers, those who think with Dr. Johnson believe it to have been the most precious gift which could be bestowed on mankind. That the authors of such splendid benefits should be requited by martyrdom; that their reward should be to be dealt with as the vilest of criminals, is not, upon this theory, a deplorable error and misfortune, for which humanity should mourn in sackcloth and ashes, but the normal and justifiable state of things. The propounder of a new truth, according to this doctrine, should stand, as stood, in the legislation of the Locrians, the proposer of a new law, with a halter round his neck, to be instantly tightened if the public assembly did not, on hearing his reasons, then and there adopt his proposition. People who defend this mode of treating benefactors, cannot be supposed to set much value on the benefit; and I believe this view of the subject is mostly confined to the sort of persons who think that new truths may have been desirable once, but that we have had enough of them now.

But, indeed, the dictum that truth always triumphs over persecution, is one of those pleasant [Pg 52] falsehoods which men repeat after one another till they pass into commonplaces, but which all experience refutes. History teems with instances of truth put down by persecution. If not suppressed for ever, it may be thrown back for centuries. To speak only of religious opinions: the Reformation broke out at least twenty times before Luther, and was put down. Arnold of Brescia was put down. Fra Dolcino was put down. Savonarola was put down. The Albigeois were put down. The Vaudois were put down. The Lollards were put down. The Hussites were put down. Even after the era of Luther, wherever persecution was persisted in, it was successful. In Spain, Italy, Flanders, the Austrian empire, Protestantism was rooted out; and, most likely, would have been so in England, had Queen Mary lived, or Queen Elizabeth died. Persecution has always succeeded, save where the heretics were too strong a party to be effectually persecuted. No reasonable person can doubt that Christianity might have been extirpated in the Roman Empire. It spread, and became predominant, because the persecutions were only occasional, lasting but a short time, and separated by long intervals of almost undisturbed propagandism. It is a piece of idle sentimentality that truth, merely as truth, [Pg 53] has any inherent power denied to error, of prevailing against the dungeon and the stake. Men are not more zealous for truth than they often are for error, and a sufficient application of legal or even of social penalties will generally succeed in stopping the propagation of either. The real advantage which truth has, consists in this, that when an opinion is true, it may be extinguished once, twice, or many times, but in the course of ages there will generally be found persons to rediscover it, until some one of its reappearances falls on a time when from favourable circumstances it escapes persecution until it has made such head as to withstand all subsequent attempts to suppress it.

It will be said, that we do not now put to death the introducers of new opinions: we are not like our fathers who slew the prophets, we even build sepulchres to them. It is true we no longer put heretics to death; and the amount of penal infliction which modern feeling would probably tolerate, even against the most obnoxious opinions, is not sufficient to extirpate them. But let us not flatter ourselves that we are yet free from the stain even of legal persecution. Penalties for opinion, or at least for its expression, still exist by law; and their enforcement is not, even in these times, [Pg 54] so unexampled as to make it at all incredible that they may some day be revived in full force. In the year 1857, at the summer assizes of the county of Cornwall, an unfortunate man, [7] said to be of unexceptionable conduct in all relations of life, was sentenced to twenty-one months' imprisonment, for uttering, and writing on a gate, some offensive words concerning Christianity. Within a month of the same time, at the Old Bailey, two persons, on two separate occasions, [8] were rejected as jurymen, and one of them grossly insulted by the judge and by one of the counsel, because they honestly declared that they had no theological belief; and a third, a foreigner, [9] for the same reason, was denied justice against a thief. This refusal of redress took place in virtue of the legal doctrine, that no person can be allowed to give evidence in a court of justice, who does not profess belief in a God (any god is sufficient) and in a future state; which is equivalent to declaring such persons to be outlaws, excluded from the [Pg 55] protection of the tribunals; who may not only be robbed or assaulted with impunity, if no one but themselves, or persons of similar opinions, be present, but any one else may be robbed or assaulted with impunity, if the proof of the fact depends on their evidence. The assumption on which this is grounded, is that the oath is worthless, of a person who does not believe in a future state; a proposition which betokens much ignorance of history in those who assent to it (since it is historically true that a large proportion of infidels in all ages have been persons of distinguished integrity and honour); and would be maintained by no one who had the smallest conception how many of the persons in greatest repute with the world, both for virtues and for attainments, are well known, at least to their intimates, to be unbelievers. The rule, besides, is suicidal, and cuts away its own foundation. Under pretence that atheists must be liars, it admits the testimony of all atheists who are willing to lie, and rejects only those who brave the obloquy of publicly confessing a detested creed rather than affirm a falsehood. A rule thus self-convicted of absurdity so far as regards its professed purpose, can be kept in force only as a badge of hatred, a relic of persecution; a [Pg 56] persecution, too, having the peculiarity, that the qualification for undergoing it, is the being clearly proved not to deserve it. The rule, and the theory it implies, are hardly less insulting to believers than to infidels. For if he who does not believe in a future state, necessarily lies, it follows that they who do believe are only prevented from lying, if prevented they are, by the fear of hell. We will not do the authors and abettors of the rule the injury of supposing, that the conception which they have formed of Christian virtue is drawn from their own consciousness.

These, indeed, are but rags and remnants of persecution, and may be thought to be not so much an indication of the wish to persecute, as an example of that very frequent infirmity of English minds, which makes them take a preposterous pleasure in the assertion of a bad principle, when they are no longer bad enough to desire to carry it really into practice. But unhappily there is no security in the state of the public mind, that the suspension of worse forms of legal persecution, which has lasted for about the space of a generation, will continue. In this age the quiet surface of routine is as often ruffled by attempts to resuscitate past evils, as to introduce new benefits. What is boasted of at [Pg 57] the present time as the revival of religion, is always, in narrow and uncultivated minds, at least as much the revival of bigotry; and where there is the strong permanent leaven of intolerance in the feelings of a people, which at all times abides in the middle classes of this country, it needs but little to provoke them into actively persecuting those whom they have never ceased to think proper objects of persecution. [10] For it is this—it is the opinions men entertain, and the feelings they cherish, respecting those who disown the beliefs they deem important, which makes this country not a place of mental freedom. For a long time past, the chief mischief of the legal penalties is that they strengthen the social stigma. [Pg 58] It is that stigma which is really effective, and so effective is it that the profession of opinions which are under the ban of society is much less common in England, than is, in many other countries, the avowal of those which incur risk of judicial punishment. In respect to all persons but those whose pecuniary circumstances make them independent of the good will of other people, opinion, on this subject, is as efficacious as law; men might as well be imprisoned, as excluded from the means of earning their bread. Those whose bread is already secured, and who desire no favours from men in power, or from bodies of men, or from the public, have nothing to fear from the open avowal of any opinions, but to be ill-thought [Pg 59] of and ill-spoken of, and this it ought not to require a very heroic mould to enable them to bear. There is no room for any appeal ad misericordiam in behalf of such persons. But though we do not now inflict so much evil on those who think differently from us, as it was formerly our custom to do, it may be that we do ourselves as much evil as ever by our treatment of them. Socrates was put to death, but the Socratic philosophy rose like the sun in heaven, and spread its illumination over the whole intellectual firmament. Christians were cast to the lions, but the Christian church grew up a stately and spreading tree, overtopping the older and less vigorous growths, and stifling them by its shade. Our merely social intolerance kills no one, roots out no opinions, but induces men to disguise them, or to abstain from any active effort for their diffusion. With us, heretical opinions do not perceptibly gain, or even lose, ground in each decade or generation; they never blaze out far and wide, but continue to smoulder in the narrow circles of thinking and studious persons among whom they originate, without ever lighting up the general affairs of mankind with either a true or a deceptive light. And thus is kept up a state of things very satisfactory to some minds, because, [Pg 60] without the unpleasant process of fining or imprisoning anybody, it maintains all prevailing opinions outwardly undisturbed, while it does not absolutely interdict the exercise of reason by dissentients afflicted with the malady of thought. A convenient plan for having peace in the intellectual world, and keeping all things going on therein very much as they do already. But the price paid for this sort of intellectual pacification, is the sacrifice of the entire moral courage of the human mind. A state of things in which a large portion of the most active and inquiring intellects find it advisable to keep the genuine principles and grounds of their convictions within their own breasts, and attempt, in what they address to the public, to fit as much as they can of their own conclusions to premises which they have internally renounced, cannot send forth the open, fearless characters, and logical, consistent intellects who once adorned the thinking world. The sort of men who can be looked for under it, are either mere conformers to commonplace, or time-servers for truth, whose arguments on all great subjects are meant for their hearers, and are not those which have convinced themselves. Those who avoid this alternative, do so by narrowing their thoughts and interest to things [Pg 61] which can be spoken of without venturing within the region of principles, that is, to small practical matters, which would come right of themselves, if but the minds of mankind were strengthened and enlarged, and which will never be made effectually right until then: while that which would strengthen and enlarge men's minds, free and daring speculation on the highest subjects, is abandoned.

Those in whose eyes this reticence on the part of heretics is no evil, should consider in the first place, that in consequence of it there is never any fair and thorough discussion of heretical opinions; and that such of them as could not stand such a discussion, though they may be prevented from spreading, do not disappear. But it is not the minds of heretics that are deteriorated most, by the ban placed on all inquiry which does not end in the orthodox conclusions. The greatest harm done is to those who are not heretics, and whose whole mental development is cramped, and their reason cowed, by the fear of heresy. Who can compute what the world loses in the multitude of promising intellects combined with timid characters, who dare not follow out any bold, vigorous, independent train of thought, lest it should land them in something which would [Pg 62] admit of being considered irreligious or immoral? Among them we may occasionally see some man of deep conscientiousness, and subtle and refined understanding, who spends a life in sophisticating with an intellect which he cannot silence, and exhausts the resources of ingenuity in attempting to reconcile the promptings of his conscience and reason with orthodoxy, which yet he does not, perhaps, to the end succeed in doing. No one can be a great thinker who does not recognise, that as a thinker it is his first duty to follow his intellect to whatever conclusions it may lead. Truth gains more even by the errors of one who, with due study and preparation, thinks for himself, than by the true opinions of those who only hold them because they do not suffer themselves to think. Not that it is solely, or chiefly, to form great thinkers, that freedom of thinking is required. On the contrary, it is as much, and even more indispensable, to enable average human beings to attain the mental stature which they are capable of. There have been, and may again be, great individual thinkers, in a general atmosphere of mental slavery. But there never has been, nor ever will be, in that atmosphere, an intellectually active people. Where any people has made a temporary approach to such a character, it has [Pg 63] been because the dread of heterodox speculation was for a time suspended. Where there is a tacit convention that principles are not to be disputed; where the discussion of the greatest questions which can occupy humanity is considered to be closed, we cannot hope to find that generally high scale of mental activity which has made some periods of history so remarkable. Never when controversy avoided the subjects which are large and important enough to kindle enthusiasm, was the mind of a people stirred up from its foundations, and the impulse given which raised even persons of the most ordinary intellect to something of the dignity of thinking beings. Of such we have had an example in the condition of Europe during the times immediately following the Reformation; another, though limited to the Continent and to a more cultivated class, in the speculative movement of the latter half of the eighteenth century; and a third, of still briefer duration, in the intellectual fermentation of Germany during the Goethian and Fichtean period. These periods differed widely in the particular opinions which they developed; but were alike in this, that during all three the yoke of authority was broken. In each, an old mental despotism had been thrown off, and no new one had yet [Pg 64] taken its place. The impulse given at these three periods has made Europe what it now is. Every single improvement which has taken place either in the human mind or in institutions, may be traced distinctly to one or other of them. Appearances have for some time indicated that all three impulses are well-nigh spent; and we can expect no fresh start, until we again assert our mental freedom.

Let us now pass to the second division of the argument, and dismissing the supposition that any of the received opinions may be false, let us assume them to be true, and examine into the worth of the manner in which they are likely to be held, when their truth is not freely and openly canvassed. However unwillingly a person who has a strong opinion may admit the possibility that his opinion may be false, he ought to be moved by the consideration that however true it may be, if it is not fully, frequently, and fearlessly discussed, it will be held as a dead dogma, not a living truth.

There is a class of persons (happily not quite so numerous as formerly) who think it enough if a person assents undoubtingly to what they think true, though he has no knowledge whatever of the grounds of the opinion, and could not make a [Pg 65] tenable defence of it against the most superficial objections. Such persons, if they can once get their creed taught from authority, naturally think that no good, and some harm, comes of its being allowed to be questioned. Where their influence prevails, they make it nearly impossible for the received opinion to be rejected wisely and considerately, though it may still be rejected rashly and ignorantly; for to shut out discussion entirely is seldom possible, and when it once gets in, beliefs not grounded on conviction are apt to give way before the slightest semblance of an argument. Waiving, however, this possibility—assuming that the true opinion abides in the mind, but abides as a prejudice, a belief independent of, and proof against, argument—this is not the way in which truth ought to be held by a rational being. This is not knowing the truth. Truth, thus held, is but one superstition the more, accidentally clinging to the words which enunciate a truth.

If the intellect and judgment of mankind ought to be cultivated, a thing which Protestants at least do not deny, on what can these faculties be more appropriately exercised by any one, than on the things which concern him so much that it is considered necessary for him to hold opinions on [Pg 66] them? If the cultivation of the understanding consists in one thing more than in another, it is surely in learning the grounds of one's own opinions. Whatever people believe, on subjects on which it is of the first importance to believe rightly, they ought to be able to defend against at least the common objections. But, some one may say, "Let them be taught the grounds of their opinions. It does not follow that opinions must be merely parroted because they are never heard controverted. Persons who learn geometry do not simply commit the theorems to memory, but understand and learn likewise the demonstrations; and it would be absurd to say that they remain ignorant of the grounds of geometrical truths, because they never hear any one deny, and attempt to disprove them." Undoubtedly: and such teaching suffices on a subject like mathematics, where there is nothing at all to be said on the wrong side of the question. The peculiarity of the evidence of mathematical truths is, that all the argument is on one side. There are no objections, and no answers to objections. But on every subject on which difference of opinion is possible, the truth depends on a balance to be struck between two sets of conflicting reasons. Even in natural philosophy, there is always some [Pg 67] other explanation possible of the same facts; some geocentric theory instead of heliocentric, some phlogiston instead of oxygen; and it has to be shown why that other theory cannot be the true one: and until this is shown, and until we know how it is shown, we do not understand the grounds of our opinion. But when we turn to subjects infinitely more complicated, to morals, religion, politics, social relations, and the business of life, three-fourths of the arguments for every disputed opinion consist in dispelling the appearances which favour some opinion different from it. The greatest orator, save one, of antiquity, has left it on record that he always studied his adversary's case with as great, if not with still greater, intensity than even his own. What Cicero practised as the means of forensic success, requires to be imitated by all who study any subject in order to arrive at the truth. He who knows only his own side of the case, knows little of that. His reasons may be good, and no one may have been able to refute them. But if he is equally unable to refute the reasons on the opposite side; if he does not so much as know what they are, he has no ground for preferring either opinion. The rational position for him would be suspension of judgment, and unless he contents himself with that, he is either [Pg 68] led by authority, or adopts, like the generality of the world, the side to which he feels most inclination. Nor is it enough that he should hear the arguments of adversaries from his own teachers, presented as they state them, and accompanied by what they offer as refutations. That is not the way to do justice to the arguments, or bring them into real contact with his own mind. He must be able to hear them from persons who actually believe them; who defend them in earnest, and do their very utmost for them. He must know them in their most plausible and persuasive form; he must feel the whole force of the difficulty which the true view of the subject has to encounter and dispose of; else he will never really possess himself of the portion of truth which meets and removes that difficulty. Ninety-nine in a hundred of what are called educated men are in this condition; even of those who can argue fluently for their opinions. Their conclusion may be true, but it might be false for anything they know: they have never thrown themselves into the mental position of those who think differently from them, and considered what such persons may have to say; and consequently they do not, in any proper sense of the word, know the doctrine which they themselves profess. They do [Pg 69] not know those parts of it which explain and justify the remainder; the considerations which show that a fact which seemingly conflicts with another is reconcilable with it, or that, of two apparently strong reasons, one and not the other ought to be preferred. All that part of the truth which turns the scale, and decides the judgment of a completely informed mind, they are strangers to; nor is it ever really known, but to those who have attended equally and impartially to both sides, and endeavoured to see the reasons of both in the strongest light. So essential is this discipline to a real understanding of moral and human subjects, that if opponents of all important truths do not exist, it is indispensable to imagine them, and supply them with the strongest arguments which the most skilful devil's advocate can conjure up.

To abate the force of these considerations, an enemy of free discussion may be supposed to say, that there is no necessity for mankind in general to know and understand all that can be said against or for their opinions by philosophers and theologians. That it is not needful for common men to be able to expose all the misstatements or fallacies of an ingenious opponent. That it is enough if there is always somebody capable of [Pg 70] answering them, so that nothing likely to mislead uninstructed persons remains unrefuted. That simple minds, having been taught the obvious grounds of the truths inculcated on them, may trust to authority for the rest, and being aware that they have neither knowledge nor talent to resolve every difficulty which can be raised, may repose in the assurance that all those which have been raised have been or can be answered, by those who are specially trained to the task.

Conceding to this view of the subject the utmost that can be claimed for it by those most easily satisfied with the amount of understanding of truth which ought to accompany the belief of it; even so, the argument for free discussion is no way weakened. For even this doctrine acknowledges that mankind ought to have a rational assurance that all objections have been satisfactorily answered; and how are they to be answered if that which requires to be answered is not spoken? or how can the answer be known to be satisfactory, if the objectors have no opportunity of showing that it is unsatisfactory? If not the public, at least the philosophers and theologians who are to resolve the difficulties, must make themselves familiar with those difficulties in their most puzzling form; and this cannot be [Pg 71] accomplished unless they are freely stated, and placed in the most advantageous light which they admit of. The Catholic Church has its own way of dealing with this embarrassing problem. It makes a broad separation between those who can be permitted to receive its doctrines on conviction, and those who must accept them on trust. Neither, indeed, are allowed any choice as to what they will accept; but the clergy, such at least as can be fully confided in, may admissibly and meritoriously make themselves acquainted with the arguments of opponents, in order to answer them, and may, therefore, read heretical books; the laity, not unless by special permission, hard to be obtained. This discipline recognises a knowledge of the enemy's case as beneficial to the teachers, but finds means, consistent with this, of denying it to the rest of the world: thus giving to the élite more mental culture, though not more mental freedom, than it allows to the mass. By this device it succeeds in obtaining the kind of mental superiority which its purposes require; for though culture without freedom never made a large and liberal mind, it can make a clever nisi prius advocate of a cause. But in countries professing Protestantism, this resource is denied; since Protestants hold, at least in theory, that the [Pg 72] responsibility for the choice of a religion must be borne by each for himself, and cannot be thrown off upon teachers. Besides, in the present state of the world, it is practically impossible that writings which are read by the instructed can be kept from the uninstructed. If the teachers of mankind are to be cognisant of all that they ought to know, everything must be free to be written and published without restraint.

If, however, the mischievous operation of the absence of free discussion, when the received opinions are true, were confined to leaving men ignorant of the grounds of those opinions, it might be thought that this, if an intellectual, is no moral evil, and does not affect the worth of the opinions, regarded in their influence on the character. The fact, however, is, that not only the grounds of the opinion are forgotten in the absence of discussion, but too often the meaning of the opinion itself. The words which convey it, cease to suggest ideas, or suggest only a small portion of those they were originally employed to communicate. Instead of a vivid conception and a living belief, there remain only a few phrases retained by rote; or, if any part, the shell and husk only of the meaning is retained, the finer essence being lost. The great chapter in human history which this fact occupies [Pg 73] and fills, cannot be too earnestly studied and meditated on.

It is illustrated in the experience of almost all ethical doctrines and religious creeds. They are all full of meaning and vitality to those who originate them, and to the direct disciples of the originators. Their meaning continues to be felt in undiminished strength, and is perhaps brought out into even fuller consciousness, so long as the struggle lasts to give the doctrine or creed an ascendency over other creeds. At last it either prevails, and becomes the general opinion, or its progress stops; it keeps possession of the ground it has gained, but ceases to spread further. When either of these results has become apparent, controversy on the subject flags, and gradually dies away. The doctrine has taken its place, if not as a received opinion, as one of the admitted sects or divisions of opinion: those who hold it have generally inherited, not adopted it; and conversion from one of these doctrines to another, being now an exceptional fact, occupies little place in the thoughts of their professors. Instead of being, as at first, constantly on the alert either to defend themselves against the world, or to bring the world over to them, they have subsided into acquiescence, and neither listen, when they [Pg 74] can help it, to arguments against their creed, nor trouble dissentients (if there be such) with arguments in its favour. From this time may usually be dated the decline in the living power of the doctrine. We often hear the teachers of all creeds lamenting the difficulty of keeping up in the minds of believers a lively apprehension of the truth which they nominally recognise, so that it may penetrate the feelings, and acquire a real mastery over the conduct. No such difficulty is complained of while the creed is still fighting for its existence: even the weaker combatants then know and feel what they are fighting for, and the difference between it and other doctrines; and in that period of every creed's existence, not a few persons may be found, who have realised its fundamental principles in all the forms of thought, have weighed and considered them in all their important bearings, and have experienced the full effect on the character, which belief in that creed ought to produce in a mind thoroughly imbued with it. But when it has come to be a hereditary creed, and to be received passively, not actively—when the mind is no longer compelled, in the same degree as at first, to exercise its vital powers on the questions which its belief presents to it, there is a progressive tendency to forget all of the [Pg 75] belief except the formularies, or to give it a dull and torpid assent, as if accepting it on trust dispensed with the necessity of realising it in consciousness, or testing it by personal experience; until it almost ceases to connect itself at all with the inner life of the human being. Then are seen the cases, so frequent in this age of the world as almost to form the majority, in which the creed remains as it were outside the mind, encrusting and petrifying it against all other influences addressed to the higher parts of our nature; manifesting its power by not suffering any fresh and living conviction to get in, but itself doing nothing for the mind or heart, except standing sentinel over them to keep them vacant.

To what an extent doctrines intrinsically fitted to make the deepest impression upon the mind may remain in it as dead beliefs, without being ever realised in the imagination, the feelings, or the understanding, is exemplified by the manner in which the majority of believers hold the doctrines of Christianity. By Christianity I here mean what is accounted such by all churches and sects—the maxims and precepts contained in the New Testament. These are considered sacred, and accepted as laws, by all professing Christians. Yet it is scarcely too much to say that not one [Pg 76] Christian in a thousand guides or tests his individual conduct by reference to those laws. The standard to which he does refer it, is the custom of his nation, his class, or his religious profession. He has thus, on the one hand, a collection of ethical maxims, which he believes to have been vouchsafed to him by infallible wisdom as rules for his government; and on the other, a set of every-day judgments and practices, which go a certain length with some of those maxims, not so great a length with others, stand in direct opposition to some, and are, on the whole, a compromise between the Christian creed and the interests and suggestions of worldly life. To the first of these standards he gives his homage; to the other his real allegiance. All Christians believe that the blessed are the poor and humble, and those who are ill-used by the world; that it is easier for a camel to pass through the eye of a needle than for a rich man to enter the kingdom of heaven; that they should judge not, lest they be judged; that they should swear not at all; that they should love their neighbour as themselves; that if one take their cloak, they should give him their coat also; that they should take no thought for the morrow; that if they would be perfect, they should sell all that they have and give it to [Pg 77] the poor. They are not insincere when they say that they believe these things. They do believe them, as people believe what they have always heard lauded and never discussed. But in the sense of that living belief which regulates conduct, they believe these doctrines just up to the point to which it is usual to act upon them. The doctrines in their integrity are serviceable to pelt adversaries with; and it is understood that they are to be put forward (when possible) as the reasons for whatever people do that they think laudable. But any one who reminded them that the maxims require an infinity of things which they never even think of doing, would gain nothing but to be classed among those very unpopular characters who affect to be better than other people. The doctrines have no hold on ordinary believers—are not a power in their minds. They have a habitual respect for the sound of them, but no feeling which spreads from the words to the things signified, and forces the mind to take them in, and make them conform to the formula. Whenever conduct is concerned, they look round for Mr. A and B to direct them how far to go in obeying Christ.

Now we may be well assured that the case was not thus, but far otherwise, with the early [Pg 78] Christians. Had it been thus, Christianity never would have expanded from an obscure sect of the despised Hebrews into the religion of the Roman empire. When their enemies said, "See how these Christians love one another" (a remark not likely to be made by anybody now), they assuredly had a much livelier feeling of the meaning of their creed than they have ever had since. And to this cause, probably, it is chiefly owing that Christianity now makes so little progress in extending its domain, and after eighteen centuries, is still nearly confined to Europeans and the descendants of Europeans. Even with the strictly religious, who are much in earnest about their doctrines, and attach a greater amount of meaning to many of them than people in general, it commonly happens that the part which is thus comparatively active in their minds is that which was made by Calvin, or Knox, or some such person much nearer in character to themselves. The sayings of Christ coexist passively in their minds, producing hardly any effect beyond what is caused by mere listening to words so amiable and bland. There are many reasons, doubtless, why doctrines which are the badge of a sect retain more of their vitality than those common to all recognised sects, and why more pains are taken by teachers to keep their [Pg 79] meaning alive; but one reason certainly is, that the peculiar doctrines are more questioned, and have to be oftener defended against open gainsayers. Both teachers and learners go to sleep at their post, as soon as there is no enemy in the field.

The same thing holds true, generally speaking, of all traditional doctrines—those of prudence and knowledge of life, as well as of morals or religion. All languages and literatures are full of general observations on life, both as to what it is, and how to conduct oneself in it; observations which everybody knows, which everybody repeats, or hears with acquiescence, which are received as truisms, yet of which most people first truly learn the meaning, when experience, generally of a painful kind, has made it a reality to them. How often, when smarting under some unforeseen misfortune or disappointment, does a person call to mind some proverb or common saying, familiar to him all his life, the meaning of which, if he had ever before felt it as he does now, would have saved him from the calamity. There are indeed reasons for this, other than the absence of discussion: there are many truths of which the full meaning cannot be realised, until personal experience has brought it home. But much more of [Pg 80] the meaning even of these would have been understood, and what was understood would have been far more deeply impressed on the mind, if the man had been accustomed to hear it argued pro and con by people who did understand it. The fatal tendency of mankind to leave off thinking about a thing when it is no longer doubtful, is the cause of half their errors. A contemporary author has well spoken of "the deep slumber of a decided opinion."

But what! (it may be asked) Is the absence of unanimity an indispensable condition of true knowledge? Is it necessary that some part of mankind should persist in error, to enable any to realise the truth? Does a belief cease to be real and vital as soon as it is generally received—and is a proposition never thoroughly understood and felt unless some doubt of it remains? As soon as mankind have unanimously accepted a truth, does the truth perish within them? The highest aim and best result of improved intelligence, it has hitherto been thought, is to unite mankind more and more in the acknowledgment of all important truths: and does the intelligence only last as long as it has not achieved its object? Do the fruits of conquest perish by the very completeness of the victory?

I affirm no such thing. As mankind improve, the number of doctrines which are no longer disputed or doubted will be constantly on the increase: and the well-being of mankind may almost be measured by the number and gravity of the truths which have reached the point of being uncontested. The cessation, on one question after another, of serious controversy, is one of the necessary incidents of the consolidation of opinion; a consolidation as salutary in the case of true opinions, as it is dangerous and noxious when the opinions are erroneous. But though this gradual narrowing of the bounds of diversity of opinion is necessary in both senses of the term, being at once inevitable and indispensable, we are not therefore obliged to conclude that all its consequences must be beneficial. The loss of so important an aid to the intelligent and living apprehension of a truth, as is afforded by the necessity of explaining it to, or defending it against, opponents, though not sufficient to outweigh, is no trifling drawback from, the benefit of its universal recognition. Where this advantage can no longer be had, I confess I should like to see the teachers of mankind endeavouring to provide a substitute for it; some contrivance for making the difficulties of the question as present to the learner's consciousness, [Pg 82] as if they were pressed upon him by a dissentient champion, eager for his conversion.

But instead of seeking contrivances for this purpose, they have lost those they formerly had. The Socratic dialectics, so magnificently exemplified in the dialogues of Plato, were a contrivance of this description. They were essentially a negative discussion of the great questions of philosophy and life, directed with consummate skill to the purpose of convincing any one who had merely adopted the commonplaces of received opinion, that he did not understand the subject—that he as yet attached no definite meaning to the doctrines he professed; in order that, becoming aware of his ignorance, he might be put in the way to attain a stable belief, resting on a clear apprehension both of the meaning of doctrines and of their evidence. The school disputations of the middle ages had a somewhat similar object. They were intended to make sure that the pupil understood his own opinion, and (by necessary correlation) the opinion opposed to it, and could enforce the grounds of the one and confute those of the other. These last-mentioned contests had indeed the incurable defect, that the premises appealed to were taken from authority, not from reason; and, as a discipline to the mind, they were in every respect [Pg 83] inferior to the powerful dialectics which formed the intellects of the "Socratici viri": but the modern mind owes far more to both than it is generally willing to admit, and the present modes of education contain nothing which in the smallest degree supplies the place either of the one or of the other. A person who derives all his instruction from teachers or books, even if he escape the besetting temptation of contenting himself with cram, is under no compulsion to hear both sides; accordingly it is far from a frequent accomplishment, even among thinkers, to know both sides; and the weakest part of what everybody says in defence of his opinion, is what he intends as a reply to antagonists. It is the fashion of the present time to disparage negative logic—that which points out weaknesses in theory or errors in practice, without establishing positive truths. Such negative criticism would indeed be poor enough as an ultimate result; but as a means to attaining any positive knowledge or conviction worthy the name, it cannot be valued too highly; and until people are again systematically trained to it, there will be few great thinkers, and a low general average of intellect, in any but the mathematical and physical departments of speculation. On any other subject no one's opinions deserve the name [Pg 84] of knowledge, except so far as he has either had forced upon him by others, or gone through of himself, the same mental process which would have been required of him in carrying on an active controversy with opponents. That, therefore, which when absent, it is so indispensable, but so difficult, to create, how worse than absurd is it to forego, when spontaneously offering itself! If there are any persons who contest a received opinion, or who will do so if law or opinion will let them, let us thank them for it, open our minds to listen to them, and rejoice that there is some one to do for us what we otherwise ought, if we have any regard for either the certainty or the vitality of our convictions, to do with much greater labour for ourselves.

It still remains to speak of one of the principal causes which make diversity of opinion advantageous, and will continue to do so until mankind shall have entered a stage of intellectual advancement which at present seems at an incalculable distance. We have hitherto considered only two possibilities: that the received opinion may be false, and some other opinion, consequently, true; or that, the received opinion being true, a conflict with the opposite error is essential to a clear apprehension [Pg 85] and deep feeling of its truth. But there is a commoner case than either of these; when the conflicting doctrines, instead of being one true and the other false, share the truth between them; and the nonconforming opinion is needed to supply the remainder of the truth, of which the received doctrine embodies only a part. Popular opinions, on subjects not palpable to sense, are often true, but seldom or never the whole truth. They are a part of the truth; sometimes a greater, sometimes a smaller part, but exaggerated, distorted, and disjoined from the truths by which they ought to be accompanied and limited. Heretical opinions, on the other hand, are generally some of these suppressed and neglected truths, bursting the bonds which kept them down, and either seeking reconciliation with the truth contained in the common opinion, or fronting it as enemies, and setting themselves up, with similar exclusiveness, as the whole truth. The latter case is hitherto the most frequent, as, in the human mind, one-sidedness has always been the rule, and many-sidedness the exception. Hence, even in revolutions of opinion, one part of the truth usually sets while another rises. Even progress, which ought to superadd, for the most part only substitutes one partial and incomplete truth for [Pg 86] another; improvement consisting chiefly in this, that the new fragment of truth is more wanted, more adapted to the needs of the time, than that which it displaces. Such being the partial character of prevailing opinions, even when resting on a true foundation; every opinion which embodies somewhat of the portion of truth which the common opinion omits, ought to be considered precious, with whatever amount of error and confusion that truth may be blended. No sober judge of human affairs will feel bound to be indignant because those who force on our notice truths which we should otherwise have overlooked, overlook some of those which we see. Rather, he will think that so long as popular truth is one-sided, it is more desirable than otherwise that unpopular truth should have one-sided asserters too; such being usually the most energetic, and the most likely to compel reluctant attention to the fragment of wisdom which they proclaim as if it were the whole.

Thus, in the eighteenth century, when nearly all the instructed, and all those of the uninstructed who were led by them, were lost in admiration of what is called civilisation, and of the marvels of modern science, literature, and philosophy, and while greatly overrating the amount of unlikeness [Pg 87] between the men of modern and those of ancient times, indulged the belief that the whole of the difference was in their own favour; with what a salutary shock did the paradoxes of Rousseau explode like bombshells in the midst, dislocating the compact mass of one-sided opinion, and forcing its elements to recombine in a better form and with additional ingredients. Not that the current opinions were on the whole farther from the truth than Rousseau's were; on the contrary, they were nearer to it; they contained more of positive truth, and very much less of error. Nevertheless there lay in Rousseau's doctrine, and has floated down the stream of opinion along with it, a considerable amount of exactly those truths which the popular opinion wanted; and these are the deposit which was left behind when the flood subsided. The superior worth of simplicity of life, the enervating and demoralising effect of the trammels and hypocrisies of artificial society, are ideas which have never been entirely absent from cultivated minds since Rousseau wrote; and they will in time produce their due effect, though at present needing to be asserted as much as ever, and to be asserted by deeds, for words, on this subject, have nearly exhausted their power.

In politics, again, it is almost a commonplace, [Pg 88] that a party of order or stability, and a party of progress or reform, are both necessary elements of a healthy state of political life; until the one or the other shall have so enlarged its mental grasp as to be a party equally of order and of progress, knowing and distinguishing what is fit to be preserved from what ought to be swept away. Each of these modes of thinking derives its utility from the deficiencies of the other; but it is in a great measure the opposition of the other that keeps each within the limits of reason and sanity. Unless opinions favourable to democracy and to aristocracy, to property and to equality, to co-operation and to competition, to luxury and to abstinence, to sociality and individuality, to liberty and discipline, and all the other standing antagonisms of practical life, are expressed with equal freedom, and enforced and defended with equal talent and energy, there is no chance of both elements obtaining their due; one scale is sure to go up and the other down. Truth, in the great practical concerns of life, is so much a question of the reconciling and combining of opposites, that very few have minds sufficiently capacious and impartial to make the adjustment with an approach to correctness, and it has to be made by the rough process of a struggle between [Pg 89] combatants fighting under hostile banners. On any of the great open questions just enumerated, if either of the two opinions has a better claim than the other, not merely to be tolerated, but to be encouraged and countenanced, it is the one which happens at the particular time and place to be in a minority. That is the opinion which, for the time being, represents the neglected interests, the side of human well-being which is in danger of obtaining less than its share. I am aware that there is not, in this country, any intolerance of differences of opinion on most of these topics. They are adduced to show, by admitted and multiplied examples, the universality of the fact, that only through diversity of opinion is there, in the existing state of human intellect, a chance of fair-play to all sides of the truth. When there are persons to be found, who form an exception to the apparent unanimity of the world on any subject, even if the world is in the right, it is always probable that dissentients have something worth hearing to say for themselves, and that truth would lose something by their silence.

It may be objected, "But some received principles, especially on the highest and most vital subjects, are more than half-truths. The Christian morality, for instance, is the whole truth [Pg 90] on that subject, and if any one teaches a morality which varies from it, he is wholly in error." As this is of all cases the most important in practice, none can be fitter to test the general maxim. But before pronouncing what Christian morality is or is not, it would be desirable to decide what is meant by Christian morality. If it means the morality of the New Testament, I wonder that any one who derives his knowledge of this from the book itself, can suppose that it was announced, or intended, as a complete doctrine of morals. The Gospel always refers to a pre-existing morality, and confines its precepts to the particulars in which that morality was to be corrected, or superseded by a wider and higher; expressing itself, moreover, in terms most general, often impossible to be interpreted literally, and possessing rather the impressiveness of poetry or eloquence than the precision of legislation. To extract from it a body of ethical doctrine, has ever been possible without eking it out from the Old Testament, that is, from a system elaborate indeed, but in many respects barbarous, and intended only for a barbarous people. St. Paul, a declared enemy to this Judaical mode of interpreting the doctrine and filling up the scheme of his Master, equally assumes a pre-existing [Pg 91] morality, namely, that of the Greeks and Romans; and his advice to Christians is in a great measure a system of accommodation to that; even to the extent of giving an apparent sanction to slavery. What is called Christian, but should rather be termed theological, morality, was not the work of Christ or the Apostles, but is of much later origin, having been gradually built up by the Catholic church of the first five centuries, and though not implicitly adopted by moderns and Protestants, has been much less modified by them than might have been expected. For the most part, indeed, they have contented themselves with cutting off the additions which had been made to it in the middle ages, each sect supplying the place by fresh additions, adapted to its own character and tendencies. That mankind owe a great debt to this morality, and to its early teachers, I should be the last person to deny; but I do not scruple to say of it, that it is, in many important points, incomplete and one-sided, and that unless ideas and feelings, not sanctioned by it, had contributed to the formation of European life and character, human affairs would have been in a worse condition than they now are. Christian morality (so called) has all the characters of a reaction; it is, in great part, a protest against Paganism. Its [Pg 92] ideal is negative rather than positive; passive rather than active; Innocence rather than Nobleness; Abstinence from Evil, rather than energetic Pursuit of Good: in its precepts (as has been well said) "thou shalt not" predominates unduly over "thou shalt." In its horror of sensuality, it made an idol of asceticism, which has been gradually compromised away into one of legality. It holds out the hope of heaven and the threat of hell, as the appointed and appropriate motives to a virtuous life: in this falling far below the best of the ancients, and doing what lies in it to give to human morality an essentially selfish character, by disconnecting each man's feelings of duty from the interests of his fellow-creatures, except so far as a self-interested inducement is offered to him for consulting them. It is essentially a doctrine of passive obedience; it inculcates submission to all authorities found established; who indeed are not to be actively obeyed when they command what religion forbids, but who are not to be resisted, far less rebelled against, for any amount of wrong to ourselves. And while, in the morality of the best Pagan nations, duty to the State holds even a disproportionate place, infringing on the just liberty of the individual; in purely Christian ethics, that grand department of duty is scarcely [Pg 93] noticed or acknowledged. It is in the Koran, not the New Testament, that we read the maxim—"A ruler who appoints any man to an office, when there is in his dominions another man better qualified for it, sins against God and against the State." What little recognition the idea of obligation to the public obtains in modern morality, is derived from Greek and Roman sources, not from Christian; as, even in the morality of private life, whatever exists of magnanimity, high-mindedness, personal dignity, even the sense of honour, is derived from the purely human, not the religious part of our education, and never could have grown out of a standard of ethics in which the only worth, professedly recognised, is that of obedience.

I am as far as any one from pretending that these defects are necessarily inherent in the Christian ethics, in every manner in which it can be conceived, or that the many requisites of a complete moral doctrine which it does not contain, do not admit of being reconciled with it. Far less would I insinuate this of the doctrines and precepts of Christ himself. I believe that the sayings of Christ are all, that I can see any evidence of their having been intended to be; that they are irreconcilable with nothing which a [Pg 94] comprehensive morality requires; that everything which is excellent in ethics may be brought within them, with no greater violence to their language than has been done to it by all who have attempted to deduce from them any practical system of conduct whatever. But it is quite consistent with this, to believe that they contain, and were meant to contain, only a part of the truth; that many essential elements of the highest morality are among the things which are not provided for, nor intended to be provided for, in the recorded deliverances of the Founder of Christianity, and which have been entirely thrown aside in the system of ethics erected on the basis of those deliverances by the Christian Church. And this being so, I think it a great error to persist in attempting to find in the Christian doctrine that complete rule for our guidance, which its author intended it to sanction and enforce, but only partially to provide. I believe, too, that this narrow theory is becoming a grave practical evil, detracting greatly from the value of the moral training and instruction, which so many well-meaning persons are now at length exerting themselves to promote. I much fear that by attempting to form the mind and feelings on an exclusively religious type, and discarding those [Pg 95] secular standards (as for want of a better name they may be called) which heretofore co-existed with and supplemented the Christian ethics, receiving some of its spirit, and infusing into it some of theirs, there will result, and is even now resulting, a low, abject, servile type of character, which, submit itself as it may to what it deems the Supreme Will, is incapable of rising to or sympathising in the conception of Supreme Goodness. I believe that other ethics than any which can be evolved from exclusively Christian sources, must exist side by side with Christian ethics to produce the moral regeneration of mankind; and that the Christian system is no exception to the rule, that in an imperfect state of the human mind, the interests of truth require a diversity of opinions. It is not necessary that in ceasing to ignore the moral truths not contained in Christianity, men should ignore any of those which it does contain. Such prejudice, or oversight, when it occurs, is altogether an evil; but it is one from which we cannot hope to be always exempt, and must be regarded as the price paid for an inestimable good. The exclusive pretension made by a part of the truth to be the whole, must and ought to be protested against, and if a reactionary impulse should make the protestors [Pg 96] unjust in their turn, this one-sidedness, like the other, may be lamented, but must be tolerated. If Christians would teach infidels to be just to Christianity, they should themselves be just to infidelity. It can do truth no service to blink the fact, known to all who have the most ordinary acquaintance with literary history, that a large portion of the noblest and most valuable moral teaching has been the work, not only of men who did not know, but of men who knew and rejected, the Christian faith.

I do not pretend that the most unlimited use of the freedom of enunciating all possible opinions would put an end to the evils of religious or philosophical sectarianism. Every truth which men of narrow capacity are in earnest about, is sure to be asserted, inculcated, and in many ways even acted on, as if no other truth existed in the world, or at all events none that could limit or qualify the first. I acknowledge that the tendency of all opinions to become sectarian is not cured by the freest discussion, but is often heightened and exacerbated thereby; the truth which ought to have been, but was not, seen, being rejected all the more violently because proclaimed by persons regarded as opponents. But it is not on the impassioned partisan, it is on the calmer and more [Pg 97] disinterested bystander, that this collision of opinions works its salutary effect. 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.

We have now recognised the necessity to the mental well-being of mankind (on which all their other well-being depends) of freedom of opinion, and freedom of the expression of opinion, on four distinct grounds; which we will now briefly recapitulate.

First, if any opinion is compelled to silence, that opinion may, for aught we can certainly know, be true. To deny this is to assume our own infallibility.

Secondly, though the silenced opinion be an error, it may, and very commonly does, contain a portion of truth; and since the general or prevailing opinion on any subject is rarely or never the whole truth, it is only by the collision of adverse opinions, that the remainder of the truth has any chance of being supplied.

Thirdly, even if the received opinion be not only true, but the whole truth; unless it is suffered to be, and actually is, vigorously and earnestly contested, it will, by most of those who receive it, be held in the manner of a prejudice, with little comprehension or feeling of its rational grounds. And not only this, but, fourthly, the meaning of the doctrine itself will be in danger of being lost, or enfeebled, and deprived of its vital effect on the character and conduct: the dogma becoming a mere formal profession, inefficacious for good, but cumbering the ground, and preventing the growth of any real and heartfelt conviction, from reason or personal experience.

Before quitting the subject of freedom of opinion, it is fit to take some notice of those who say, that the free expression of all opinions should be permitted, on condition that the manner be temperate, and do not pass the bounds of fair discussion. Much might be said on the [Pg 99] impossibility of fixing where these supposed bounds are to be placed; for if the test be offence to those whose opinion is attacked, I think experience testifies that this offence is given whenever the attack is telling and powerful, and that every opponent who pushes them hard, and whom they find it difficult to answer, appears to them, if he shows any strong feeling on the subject, an intemperate opponent. But this, though an important consideration in a practical point of view, merges in a more fundamental objection. Undoubtedly the manner of asserting an opinion, even though it be a true one, may be very objectionable, and may justly incur severe censure. But the principal offences of the kind are such as it is mostly impossible, unless by accidental self-betrayal, to bring home to conviction. The gravest of them is, to argue sophistically, to suppress facts or arguments, to misstate the elements of the case, or misrepresent the opposite opinion. But all this, even to the most aggravated degree, is so continually done in perfect good faith, by persons who are not considered, and in many other respects may not deserve to be considered, ignorant or incompetent, that it is rarely possible on adequate grounds conscientiously to stamp the misrepresentation as morally culpable; and still [Pg 100] less could law presume to interfere with this kind of controversial misconduct. With regard to what is commonly meant by intemperate discussion, namely invective, sarcasm, personality, and the like, the denunciation of these weapons would deserve more sympathy if it were ever proposed to interdict them equally to both sides; but it is only desired to restrain the employment of them against the prevailing opinion: against the unprevailing they may not only be used without general disapproval, but will be likely to obtain for him who uses them the praise of honest zeal and righteous indignation. Yet whatever mischief arises from their use, is greatest when they are employed against the comparatively defenceless; and whatever unfair advantage can be derived by any opinion from this mode of asserting it, accrues almost exclusively to received opinions. The worst offence of this kind which can be committed by a polemic, is to stigmatise those who hold the contrary opinion as bad and immoral men. To calumny of this sort, those who hold any unpopular opinion are peculiarly exposed, because they are in general few and uninfluential, and nobody but themselves feel much interest in seeing justice done them; but this weapon is, from the nature of the case, denied to those who attack [Pg 101] a prevailing opinion: they can neither use it with safety to themselves, nor, if they could, would it do anything but recoil on their own cause. In general, opinions contrary to those commonly received can only obtain a hearing by studied moderation of language, and the most cautious avoidance of unnecessary offence, from which they hardly ever deviate even in a slight degree without losing ground: while unmeasured vituperation employed on the side of the prevailing opinion, really does deter people from professing contrary opinions, and from listening to those who profess them. For the interest, therefore, of truth and justice, it is far more important to restrain this employment of vituperative language than the other; and, for example, if it were necessary to choose, there would be much more need to discourage offensive attacks on infidelity, than on religion. It is, however, obvious that law and authority have no business with restraining either, while opinion ought, in every instance, to determine its verdict by the circumstances of the individual case; condemning every one, on whichever side of the argument he places himself, in whose mode of advocacy either want of candour, or malignity, bigotry, or intolerance of feeling manifest themselves; but not inferring these vices from the side [Pg 102] which a person takes, though it be the contrary side of the question to our own: and giving merited honour to every one, whatever opinion he may hold, who has calmness to see and honesty to state what his opponents and their opinions really are, exaggerating nothing to their discredit, keeping nothing back which tells, or can be supposed to tell, in their favour. This is the real morality of public discussion; and if often violated, I am happy to think that there are many controversialists who to a great extent observe it, and a still greater number who conscientiously strive towards it.

[6] These words had scarcely been written, when, as if to give them an emphatic contradiction, occurred the Government Press Prosecutions of 1858. That ill-judged interference with the liberty of public discussion has not, however, induced me to alter a single word in the text, nor has it at all weakened my conviction that, moments of panic excepted, the era of pains and penalties for political discussion has, in our own country, passed away. For, in the first place, the prosecutions were not persisted in; and, in the second, they were never, properly speaking, political prosecutions. The offence charged was not that of criticising institutions, or the acts or persons of rulers, but of circulating what was deemed an immoral doctrine, the lawfulness of Tyrannicide.

If the arguments of the present chapter are of any validity, there ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered. It would, therefore, be irrelevant and out of place to examine here, whether the doctrine of Tyrannicide deserves that title. I shall content myself with saying, that the subject has been at all times one of the open questions of morals; that the act of a private citizen in striking down a criminal, who, by raising himself above the law, has placed himself beyond the reach of legal punishment or control, has been accounted by whole nations, and by some of the best and wisest of men, not a crime, but an act of exalted virtue; and that, right or wrong, it is not of the nature of assassination, but of civil war. As such, I hold that the instigation to it, in a specific case, may be a proper subject of punishment, but only if an overt act has followed, and at least a probable connection can be established between the act and the instigation. Even then, it is not a foreign government, but the very government assailed, which alone, in the exercise of self-defence, can legitimately punish attacks directed against its own existence.

[7] Thomas Pooley, Bodmin Assizes, July 31, 1857. In December following, he received a free pardon from the Crown.

[8] George Jacob Holyoake, August 17, 1857; Edward Truelove, July, 1857.

[9] Baron de Gleichen, Marlborough-Street Police Court, August 4, 1857.

[10] Ample warning may be drawn from the large infusion of the passions of a persecutor, which mingled with the general display of the worst parts of our national character on the occasion of the Sepoy insurrection. The ravings of fanatics or charlatans from the pulpit may be unworthy of notice; but the heads of the Evangelical party have announced as their principle, for the government of Hindoos and Mahomedans, that no schools be supported by public money in which the Bible is not taught, and by necessary consequence that no public employment be given to any but real or pretended Christians. An Under-Secretary of State, in a speech delivered to his constituents on the 12th of November, 1857, is reported to have said: "Toleration of their faith" (the faith of a hundred millions of British subjects), "the superstition which they called religion, by the British Government, had had the effect of retarding the ascendency of the British name, and preventing the salutary growth of Christianity.... Toleration was the great corner-stone of the religious liberties of this country; but do not let them abuse that precious word toleration. As he understood it, it meant the complete liberty to all, freedom of worship, among Christians, who worshipped upon the same foundation . It meant toleration of all sects and denominations of Christians who believed in the one mediation ." I desire to call attention to the fact, that a man who has been deemed fit to fill a high office in the government of this country, under a liberal Ministry, maintains the doctrine that all who do not believe in the divinity of Christ are beyond the pale of toleration. Who, after this imbecile display, can indulge the illusion that religious persecution has passed away, never to return?

CHAPTER III. OF INDIVIDUALITY, AS ONE OF THE ELEMENTS OF WELL-BEING.

Such being the reasons which make it imperative that human beings should be free to form opinions, and to express their opinions without reserve; and such the baneful consequences to the intellectual, and through that to the moral nature of man, unless this liberty is either conceded, or asserted in spite of prohibition; let us next examine whether the same reasons do not require that men should be free to act upon their opinions—to carry these out in their lives, without hindrance, either physical or moral, from their fellow-men, so long as it is at their own risk and peril. This last proviso is of course indispensable. No one pretends that actions should be as free as opinions. On the contrary, even opinions lose their immunity, when the circumstances in which they are expressed are such as to constitute their [Pg 104] expression a positive instigation to some mischievous act. 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. Acts, of whatever kind, which, without justifiable cause, do harm to others, may be, and in the more important cases absolutely require to be, controlled by the unfavourable sentiments, and, when needful, by the active interference of mankind. The liberty of the individual must be thus far limited; he must not make himself a nuisance to other people. But if he refrains from molesting others in what concerns them, and merely acts according to his own inclination and judgment in things which concern himself, the same reasons which show that opinion should be free, prove also that he should be allowed, without molestation, to carry his opinions into practice at his own cost. That mankind are not infallible; that their truths, for the most part, are only half-truths; that unity of opinion, unless resulting from the fullest and freest comparison of opposite opinions, is not [Pg 105] desirable, and diversity not an evil, but a good, until mankind are much more capable than at present of recognising all sides of the truth, are principles applicable to men's modes of action, not less than to their opinions. As it is useful that while mankind are imperfect there should be different opinions, so is it that there should be different experiments of living; that free scope should be given to varieties of character, short of injury to others; and that the worth of different modes of life should be proved practically, when any one thinks fit to try them. It is desirable, in short, that in things which do not primarily concern others, individuality should assert itself. Where, not the person's own character, but the traditions or customs of other people are the rule of conduct, there is wanting one of the principal ingredients of human happiness, and quite the chief ingredient of individual and social progress.

In maintaining this principle, the greatest difficulty to be encountered does not lie in the appreciation of means towards an acknowledged end, but in the indifference of persons in general to the end itself. If it were felt that the free development of individuality is one of the leading essentials of well-being; that it is not only a co-ordinate element with all that is designated [Pg 106] by the terms civilisation, instruction, education, culture, but is itself a necessary part and condition of all those things; there would be no danger that liberty should be under-valued, and the adjustment of the boundaries between it and social control would present no extraordinary difficulty. But the evil is, that individual spontaneity is hardly recognised by the common modes of thinking, as having any intrinsic worth, or deserving any regard on its own account. The majority, being satisfied with the ways of mankind as they now are (for it is they who make them what they are), cannot comprehend why those ways should not be good enough for everybody; and what is more, spontaneity forms no part of the ideal of the majority of moral and social reformers, but is rather looked on with jealousy, as a troublesome and perhaps rebellious obstruction to the general acceptance of what these reformers, in their own judgment, think would be best for mankind. Few persons, out of Germany, even comprehend the meaning of the doctrine which Wilhelm von Humboldt, so eminent both as a savant and as a politician, made the text of a treatise—that "the end of man, or that which is prescribed by the eternal or immutable dictates of reason, and not suggested by vague and transient [Pg 107] desires, is the highest and most harmonious development of his powers to a complete and consistent whole;" that, therefore, the object "towards which every human being must ceaselessly direct his efforts, and on which especially those who design to influence their fellow-men must ever keep their eyes, is the individuality of power and development;" that for this there are two requisites, "freedom, and a variety of situations;" and that from the union of these arise "individual vigour and manifold diversity," which combine themselves in "originality." [11]

Little, however, as people are accustomed to a doctrine like that of Von Humboldt, and surprising as it may be to them to find so high a value attached to individuality, the question, one must nevertheless think, can only be one of degree. No one's idea of excellence in conduct is that people should do absolutely nothing but copy one another. No one would assert that people ought not to put into their mode of life, and into the conduct of their concerns, any impress whatever of their own judgment, or of their own individual character. On the other hand, it would be absurd to pretend that people ought to live as if nothing [Pg 108] whatever had been known in the world before they came into it; as if experience had as yet done nothing towards showing that one mode of existence, or of conduct, is preferable to another. Nobody denies that people should be so taught and trained in youth, as to know and benefit by the ascertained results of human experience. But it is the privilege and proper condition of a human being, arrived at the maturity of his faculties, to use and interpret experience in his own way. It is for him to find out what part of recorded experience is properly applicable to his own circumstances and character. The traditions and customs of other people are, to a certain extent, evidence of what their experience has taught them ; presumptive evidence, and as such, have a claim to his deference: but, in the first place, their experience may be too narrow; or they may not have interpreted it rightly. Secondly, their interpretation of experience may be correct, but unsuitable to him. Customs are made for customary circumstances, and customary characters: and his circumstances or his character may be uncustomary. Thirdly, though the customs be both good as customs, and suitable to him, yet to conform to custom, merely as custom, does not educate or develop in him any of the qualities [Pg 109] which are the distinctive endowment of a human being. The human faculties of perception, judgment, discriminative feeling, mental activity, and even moral preference, are exercised only in making a choice. He who does anything because it is the custom, makes no choice. He gains no practice either in discerning or in desiring what is best. The mental and moral, like the muscular powers, are improved only by being used. The faculties are called into no exercise by doing a thing merely because others do it, no more than by believing a thing only because others believe it. If the grounds of an opinion are not conclusive to the person's own reason, his reason cannot be strengthened, but is likely to be weakened by his adopting it: and if the inducements to an act are not such as are consentaneous to his own feelings and character (where affection, or the rights of others, are not concerned), it is so much done towards rendering his feelings and character inert and torpid, instead of active and energetic.

He who lets the world, or his own portion of it, choose his plan of life for him, has no need of any other faculty than the ape-like one of imitation. He who chooses his plan for himself, employs all his faculties. He must use observation to see, reasoning and judgment to foresee, activity to [Pg 110] gather materials for decision, discrimination to decide, and when he has decided, firmness and self-control to hold to his deliberate decision. And these qualities he requires and exercises exactly in proportion as the part of his conduct which he determines according to his own judgment and feelings is a large one. It is possible that he might be guided in some good path, and kept out of harm's way, without any of these things. But what will be his comparative worth as a human being? It really is of importance, not only what men do, but also what manner of men they are that do it. Among the works of man, which human life is rightly employed in perfecting and beautifying, the first in importance surely is man himself. Supposing it were possible to get houses built, corn grown, battles fought, causes tried, and even churches erected and prayers said, by machinery—by automatons in human form—it would be a considerable loss to exchange for these automatons even the men and women who at present inhabit the more civilised parts of the world, and who assuredly are but starved specimens of what nature can and will produce. Human nature is not a machine to be built after a model, and set to do exactly the work prescribed for it, but a tree, which requires to grow and [Pg 111] develop itself on all sides, according to the tendency of the inward forces which make it a living thing.

It will probably be conceded that it is desirable people should exercise their understandings, and that an intelligent following of custom, or even occasionally an intelligent deviation from custom, is better than a blind and simply mechanical adhesion to it. To a certain extent it is admitted, that our understanding should be our own: but there is not the same willingness to admit that our desires and impulses should be our own likewise; or that to possess impulses of our own, and of any strength, is anything but a peril and a snare. Yet desires and impulses are as much a part of a perfect human being, as beliefs and restraints: and strong impulses are only perilous when not properly balanced; when one set of aims and inclinations is developed into strength, while others, which ought to co-exist with them, remain weak and inactive. It is not because men's desires are strong that they act ill; it is because their consciences are weak. There is no natural connection between strong impulses and a weak conscience. The natural connection is the other way. To say that one person's desires and feelings are stronger and more various than those [Pg 112] of another, is merely to say that he has more of the raw material of human nature, and is therefore capable, perhaps of more evil, but certainly of more good. Strong impulses are but another name for energy. Energy may be turned to bad uses; but more good may always be made of an energetic nature, than of an indolent and impassive one. Those who have most natural feeling, are always those whose cultivated feelings may be made the strongest. The same strong susceptibilities which make the personal impulses vivid and powerful, are also the source from whence are generated the most passionate love of virtue, and the sternest self-control. It is through the cultivation of these, that society both does its duty and protects its interests: not by rejecting the stuff of which heroes are made, because it knows not how to make them. A person whose desires and impulses are his own—are the expression of his own nature, as it has been developed and modified by his own culture—is said to have a character. One whose desires and impulses are not his own, has no character, no more than a steam-engine has a character. If, in addition to being his own, his impulses are strong, and are under the government of a strong will, he has an energetic character. Whoever thinks that [Pg 113] individuality of desires and impulses should not be encouraged to unfold itself, must maintain that society has no need of strong natures—is not the better for containing many persons who have much character—and that a high general average of energy is not desirable.

In some early states of society, these forces might be, and were, too much ahead of the power which society then possessed of disciplining and controlling them. There has been a time when the element of spontaneity and individuality was in excess, and the social principle had a hard struggle with it. The difficulty then was, to induce men of strong bodies or minds to pay obedience to any rules which required them to control their impulses. To overcome this difficulty, law and discipline, like the Popes struggling against the Emperors, asserted a power over the whole man, claiming to control all his life in order to control his character—which society had not found any other sufficient means of binding. But society has now fairly got the better of individuality; and the danger which threatens human nature is not the excess, but the deficiency, of personal impulses and preferences. Things are vastly changed, since the passions of those who were strong by station or by personal endowment [Pg 114] were in a state of habitual rebellion against laws and ordinances, and required to be rigorously chained up to enable the persons within their reach to enjoy any particle of security. In our times, from the highest class of society down to the lowest, every one lives as under the eye of a hostile and dreaded censorship. Not only in what concerns others, but in what concerns only themselves, the individual, or the family, do not ask themselves—what do I prefer? or, what would suit my character and disposition? or, what would allow the best and highest in me to have fair-play, and enable it to grow and thrive? They ask themselves, what is suitable to my position? what is usually done by persons of my station and pecuniary circumstances? or (worse still) what is usually done by persons of a station and circumstances superior to mine? I do not mean that they choose what is customary, in preference to what suits their own inclination. It does not occur to them to have any inclination, except for what is customary. Thus the mind itself is bowed to the yoke: even in what people do for pleasure, conformity is the first thing thought of; they live in crowds; they exercise choice only among things commonly done: peculiarity of taste, eccentricity of conduct, are shunned equally with [Pg 115] crimes: until by dint of not following their own nature, they have no nature to follow: their human capacities are withered and starved: they become incapable of any strong wishes or native pleasures, and are generally without either opinions or feelings of home growth, or properly their own. Now is this, or is it not, the desirable condition of human nature?

It is so, on the Calvinistic theory. According to that, the one great offence of man is Self-will. All the good of which humanity is capable, is comprised in Obedience. You have no choice; thus you must do, and no otherwise: "whatever is not a duty, is a sin." Human nature being radically corrupt, there is no redemption for any one until human nature is killed within him. To one holding this theory of life, crushing out any of the human faculties, capacities, and susceptibilities, is no evil: man needs no capacity, but that of surrendering himself to the will of God: and if he uses any of his faculties for any other purpose but to do that supposed will more effectually, he is better without them. That is the theory of Calvinism; and it is held, in a mitigated form, by many who do not consider themselves Calvinists; the mitigation consisting in giving a less ascetic interpretation to the alleged will of God; asserting [Pg 116] it to be his will that mankind should gratify some of their inclinations; of course not in the manner they themselves prefer, but in the way of obedience, that is, in a way prescribed to them by authority; and, therefore, by the necessary conditions of the case, the same for all.

In some such insidious form there is at present a strong tendency to this narrow theory of life, and to the pinched and hidebound type of human character which it patronises. Many persons, no doubt, sincerely think that human beings thus cramped and dwarfed, are as their Maker designed them to be; just as many have thought that trees are a much finer thing when clipped into pollards, or cut out into figures of animals, than as nature made them. But if it be any part of religion to believe that man was made by a good being, it is more consistent with that faith to believe, that this Being gave all human faculties that they might be cultivated and unfolded, not rooted out and consumed, and that he takes delight in every nearer approach made by his creatures to the ideal conception embodied in them, every increase in any of their capabilities of comprehension, of action, or of enjoyment. There is a different type of human excellence from the Calvinistic; a conception of humanity as having its nature [Pg 117] bestowed on it for other purposes than merely to be abnegated. "Pagan self-assertion" is one of the elements of human worth, as well as "Christian self-denial." [12] There is a Greek ideal of self-development, which the Platonic and Christian ideal of self-government blends with, but does not supersede. It may be better to be a John Knox than an Alcibiades, but it is better to be a Pericles than either; nor would a Pericles, if we had one in these days, be without anything good which belonged to John Knox.

It is not by wearing down into uniformity all that is individual in themselves, but by cultivating it and calling it forth, within the limits imposed by the rights and interests of others, that human beings become a noble and beautiful object of contemplation; and as the works partake the character of those who do them, by the same process human life also becomes rich, diversified, and animating, furnishing more abundant aliment to high thoughts and elevating feelings, and strengthening the tie which binds every individual to the race, by making the race infinitely better worth belonging to. In proportion to the development of his individuality, each person becomes more valuable to himself, and is therefore capable [Pg 118] of being more valuable to others. There is a greater fulness of life about his own existence, and when there is more life in the units there is more in the mass which is composed of them. As much compression as is necessary to prevent the stronger specimens of human nature from encroaching on the rights of others, cannot be dispensed with; but for this there is ample compensation even in the point of view of human development. The means of development which the individual loses by being prevented from gratifying his inclinations to the injury of others, are chiefly obtained at the expense of the development of other people. And even to himself there is a full equivalent in the better development of the social part of his nature, rendered possible by the restraint put upon the selfish part. To be held to rigid rules of justice for the sake of others, develops the feelings and capacities which have the good of others for their object. But to be restrained in things not affecting their good, by their mere displeasure, develops nothing valuable, except such force of character as may unfold itself in resisting the restraint. If acquiesced in, it dulls and blunts the whole nature. To give any fair-play to the nature of each, it is essential that different persons should be allowed to lead [Pg 119] different lives. In proportion as this latitude has been exercised in any age, has that age been noteworthy to posterity. Even despotism does not produce its worst effects, so long as Individuality exists under it; and whatever crushes individuality is despotism, by whatever name it may be called, and whether it professes to be enforcing the will of God or the injunctions of men.

Having said that Individuality is the same thing with development, and that it is only the cultivation of individuality which produces, or can produce, well-developed human beings, I might here close the argument: for what more or better can be said of any condition of human affairs, than that it brings human beings themselves nearer to the best thing they can be? or what worse can be said of any obstruction to good, than that it prevents this? Doubtless, however, these considerations will not suffice to convince those who most need convincing; and it is necessary further to show, that these developed human beings are of some use to the undeveloped—to point out to those who do not desire liberty, and would not avail themselves of it, that they may be in some intelligible manner rewarded for allowing other people to make use of it without hindrance.

In the first place, then, I would suggest that they might possibly learn something from them. It will not be denied by anybody, that originality is a valuable element in human affairs. There is always need of persons not only to discover new truths, and point out when what were once truths are true no longer, but also to commence new practices, and set the example of more enlightened conduct, and better taste and sense in human life. This cannot well be gainsaid by anybody who does not believe that the world has already attained perfection in all its ways and practices. It is true that this benefit is not capable of being rendered by everybody alike: there are but few persons, in comparison with the whole of mankind, whose experiments, if adopted by others, would be likely to be any improvement on established practice. But these few are the salt of the earth; without them, human life would become a stagnant pool. Not only is it they who introduce good things which did not before exist; it is they who keep the life in those which already existed. If there were nothing new to be done, would human intellect cease to be necessary? Would it be a reason why those who do the old things should forget why they are done, and do them like cattle, not like human beings? There is only too great [Pg 121] 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. Persons of genius, it is true, are, and are always likely to be, a small minority; but in order to have them, it is necessary to preserve the soil in which they grow. Genius can only breathe freely in an atmosphere of freedom. Persons of genius are, ex vi termini , more individual than any other people—less capable, consequently, of fitting themselves, without hurtful compression, into any of the small number of moulds which society provides in order to save its members the trouble of forming their own character. If from timidity they consent to be forced into one of these moulds, and to let all that part of themselves which cannot expand under the pressure remain unexpanded, society will be little the better for their genius. If they are of a strong character, and break their fetters, they become a mark for the society which has not succeeded in reducing [Pg 122] them to commonplace, to point at with solemn warning as "wild," "erratic," and the like; much as if one should complain of the Niagara river for not flowing smoothly between its banks like a Dutch canal.

I insist thus emphatically on the importance of genius, and the necessity of allowing it to unfold itself freely both in thought and in practice, being well aware that no one will deny the position in theory, but knowing also that almost every one, in reality, is totally indifferent to it. People think genius a fine thing if it enables a man to write an exciting poem, or paint a picture. But in its true sense, that of originality in thought and action, though no one says that it is not a thing to be admired, nearly all, at heart, think that they can do very well without it. Unhappily this is too natural to be wondered at. Originality is the one thing which unoriginal minds cannot feel the use of. They cannot see what it is to do for them: how should they? If they could see what it would do for them, it would not be originality. The first service which originality has to render them, is that of opening their eyes: which being once fully done, they would have a chance of being themselves original. Meanwhile, recollecting that nothing was ever yet done which some one [Pg 123] was not the first to do, and that all good things which exist are the fruits of originality, let them be modest enough to believe that there is something still left for it to accomplish, and assure themselves that they are more in need of originality, the less they are conscious of the want.

In sober truth, whatever homage may be professed, or even paid, to real or supposed mental superiority, the general tendency of things throughout the world is to render mediocrity the ascendant power among mankind. In ancient history, in the middle ages, and in a diminishing degree through the long transition from feudality to the present time, the individual was a power in himself; and if he had either great talents or a high social position, he was a considerable power. At present individuals are lost in the crowd. In politics it is almost a triviality to say that public opinion now rules the world. The only power deserving the name is that of masses, and of governments while they make themselves the organ of the tendencies and instincts of masses. This is as true in the moral and social relations of private life as in public transactions. Those whose opinions go by the name of public opinion, are not always the same sort of public: in [Pg 124] America they are the whole white population; in England, chiefly the middle class. But they are always a mass, that is to say, collective mediocrity. And what is a still greater novelty, the mass do not now take their opinions from dignitaries in Church or State, from ostensible leaders, or from books. Their thinking is done for them by men much like themselves, addressing them or speaking in their name, on the spur of the moment, through the newspapers. I am not complaining of all this. I do not assert that anything better is compatible, as a general rule, with the present low state of the human mind. But that does not hinder the government of mediocrity from being mediocre government. No government by a democracy or a numerous aristocracy, either in its political acts or in the opinions, qualities, and tone of mind which it fosters, ever did or could rise above mediocrity, except in so far as the sovereign Many have let themselves be guided (which in their best times they always have done) by the counsels and influence of a more highly gifted and instructed One or Few. The initiation of all wise or noble things, comes and must come from individuals; generally at first from some one individual. The honour and glory of the average man is that he is capable of following that initiative; that he can [Pg 125] respond internally to wise and noble things, and be led to them with his eyes open. I am not countenancing the sort of "hero-worship" which applauds the strong man of genius for forcibly seizing on the government of the world and making it do his bidding in spite of itself. All he can claim is, freedom to point out the way. The power of compelling others into it, is not only inconsistent with the freedom and development of all the rest, but corrupting to the strong man himself. It does seem, however, that when the opinions of masses of merely average men are everywhere become or becoming the dominant power, the counterpoise and corrective to that tendency would be, the more and more pronounced individuality of those who stand on the higher eminences of thought. It is in these circumstances most especially, that exceptional individuals, instead of being deterred, should be encouraged in acting differently from the mass. In other times there was no advantage in their doing so, unless they acted not only differently, but better. In this age the mere example of nonconformity, the mere refusal to bend the knee to custom, is itself a service. Precisely because the tyranny of opinion is such as to make eccentricity a reproach, it is desirable, in order to break through that tyranny, [Pg 126] that people should be eccentric. Eccentricity has always abounded when and where strength of character has abounded; and the amount of eccentricity in a society has generally been proportional to the amount of genius, mental vigour, and moral courage which it contained. That so few now dare to be eccentric, marks the chief danger of the time.

I have said that it is important to give the freest scope possible to uncustomary things, in order that it may in time appear which of these are fit to be converted into customs. But independence of action, and disregard of custom are not solely deserving of encouragement for the chance they afford that better modes of action, and customs more worthy of general adoption, may be struck out; nor is it only persons of decided mental superiority who have a just claim to carry on their lives in their own way. There is no reason that all human existences should be constructed on some one, or some small number of patterns. If a person possesses any tolerable amount of common-sense and experience, his own mode of laying out his existence is the best, not because it is the best in itself, but because it is his own mode. Human beings are not like sheep; and even sheep are not [Pg 127] undistinguishably alike. A man cannot get a coat or a pair of boots to fit him, unless they are either made to his measure, or he has a whole warehouseful to choose from: and is it easier to fit him with a life than with a coat, or are human beings more like one another in their whole physical and spiritual conformation than in the shape of their feet? If it were only that people have diversities of taste, that is reason enough for not attempting to shape them all after one model. But different persons also require different conditions for their spiritual development; and can no more exist healthily in the same moral, than all the variety of plants can in the same physical, atmosphere and climate. The same things which are helps to one person towards the cultivation of his higher nature, are hindrances to another. The same mode of life is a healthy excitement to one, keeping all his faculties of action and enjoyment in their best order, while to another it is a distracting burthen, which suspends or crushes all internal life. Such are the differences among human beings in their sources of pleasure, their susceptibilities of pain, and the operation on them of different physical and moral agencies, that unless there is a corresponding diversity in their modes of life, they neither obtain [Pg 128] their fair share of happiness, nor grow up to the mental, moral, and aesthetic stature of which their nature is capable. Why then should tolerance, as far as the public sentiment is concerned, extend only to tastes and modes of life which extort acquiescence by the multitude of their adherents? Nowhere (except in some monastic institutions) is diversity of taste entirely unrecognised; a person may, without blame, either like or dislike rowing, or smoking, or music, or athletic exercises, or chess, or cards, or study, because both those who like each of these things, and those who dislike them, are too numerous to be put down. But the man, and still more the woman, who can be accused either of doing "what nobody does," or of not doing "what everybody does," is the subject of as much depreciatory remark as if he or she had committed some grave moral delinquency. Persons require to possess a title, or some other badge of rank, or of the consideration of people of rank, to be able to indulge somewhat in the luxury of doing as they like without detriment to their estimation. To indulge somewhat, I repeat: for whoever allow themselves much of that indulgence, incur the risk of something worse than disparaging speeches—they are in peril of a commission de lunatico , and of having their [Pg 129] property taken from them and given to their relations. [13]

There is one characteristic of the present direction of public opinion, peculiarly calculated to make it intolerant of any marked demonstration of individuality. The general average of mankind are not only moderate in intellect, but also moderate in inclinations: they have no tastes or wishes strong enough to incline them to do anything unusual, and they consequently do not understand those who have, and class all such with the wild and intemperate whom they are accustomed to look down upon. Now, in addition to this fact which is general, we have only to suppose that a strong movement has set in [Pg 130] towards the improvement of morals, and it is evident what we have to expect. In these days such a movement has set in; much has actually been effected in the way of increased regularity of conduct, and discouragement of excesses; and there is a philanthropic spirit abroad, for the exercise of which there is no more inviting field than the moral and prudential improvement of our fellow-creatures. These tendencies of the times cause the public to be more disposed than at most former periods to prescribe general rules of conduct, and endeavour to make every one conform to the approved standard. And that standard, express or tacit, is to desire nothing strongly. Its ideal of character is to be without any marked character; to maim by compression, [Pg 131] like a Chinese lady's foot, every part of human nature which stands out prominently, and tends to make the person markedly dissimilar in outline to commonplace humanity.

As is usually the case with ideals which exclude one-half of what is desirable, the present standard of approbation produces only an inferior imitation of the other half. Instead of great energies guided by vigorous reason, and strong feelings strongly controlled by a conscientious will, its result is weak feelings and weak energies, which therefore can be kept in outward conformity to rule without any strength either of will or of reason. Already energetic characters on any large scale are becoming merely traditional. There is now scarcely any outlet for energy in this country except business. The energy expended in that may still be regarded as considerable. What little is left from that employment, is expended on some hobby; which may be a useful, even a philanthropic hobby, but is always some one thing, and generally a thing of small dimensions. The greatness of England is now all collective: individually small, we only appear capable of anything great by our habit of combining; and with this our moral and religious philanthropists are perfectly contented. But it was men of [Pg 132] another stamp than this that made England what it has been; and men of another stamp will be needed to prevent its decline.

The despotism of custom is everywhere the standing hindrance to human advancement, being in unceasing antagonism to that disposition to aim at something better than customary, which is called, according to circumstances, the spirit of liberty, or that of progress or improvement. The spirit of improvement is not always a spirit of liberty, for it may aim at forcing improvements on an unwilling people; and the spirit of liberty, in so far as it resists such attempts, may ally itself locally and temporarily with the opponents of improvement; but the only unfailing and permanent source of improvement is liberty, since by it there are as many possible independent centres of improvement as there are individuals. The progressive principle, however, in either shape, whether as the love of liberty or of improvement, is antagonistic to the sway of Custom, involving at least emancipation from that yoke; and the contest between the two constitutes the chief interest of the history of mankind. The greater part of the world has, properly speaking, no history, because the despotism of Custom is complete. This is the case over the whole East. [Pg 133] Custom is there, in all things, the final appeal; justice and right mean conformity to custom; the argument of custom no one, unless some tyrant intoxicated with power, thinks of resisting. And we see the result. Those nations must once have had originality; they did not start out of the ground populous, lettered, and versed in many of the arts of life; they made themselves all this, and were then the greatest and most powerful nations in the world. What are they now? The subjects or dependants of tribes whose forefathers wandered in the forests when theirs had magnificent palaces and gorgeous temples, but over whom custom exercised only a divided rule with liberty and progress. A people, it appears, may be progressive for a certain length of time, and then stop: when does it stop? When it ceases to possess individuality. If a similar change should befall the nations of Europe, it will not be in exactly the same shape: the despotism of custom with which these nations are threatened is not precisely stationariness. It proscribes singularity, but it does not preclude change, provided all change together. We have discarded the fixed costumes of our forefathers; every one must still dress like other people, but the fashion may change once or twice a year. We thus take care that when there [Pg 134] is change, it shall be for change's sake, and not from any idea of beauty or convenience; for the same idea of beauty or convenience would not strike all the world at the same moment, and be simultaneously thrown aside by all at another moment. But we are progressive as well as changeable: we continually make new inventions in mechanical things, and keep them until they are again superseded by better; we are eager for improvement in politics, in education, even in morals, though in this last our idea of improvement chiefly consists in persuading or forcing other people to be as good as ourselves. It is not progress that we object to; on the contrary, we flatter ourselves that we are the most progressive people who ever lived. It is individuality that we war against: we should think we had done wonders if we had made ourselves all alike; forgetting that the unlikeness of one person to another is generally the first thing which draws the attention of either to the imperfection of his own type, and the superiority of another, or the possibility, by combining the advantages of both, of producing something better than either. We have a warning example in China—a nation of much talent, and, in some respects, even wisdom, owing to the rare good fortune of having been [Pg 135] provided at an early period with a particularly good set of customs, the work, in some measure, of men to whom even the most enlightened European must accord, under certain limitations, the title of sages and philosophers. They are remarkable, too, in the excellence of their apparatus for impressing, as far as possible, the best wisdom they possess upon every mind in the community, and securing that those who have appropriated most of it shall occupy the posts of honour and power. Surely the people who did this have discovered the secret of human progressiveness, and must have kept themselves steadily at the head of the movement of the world. On the contrary, they have become stationary—have remained so for thousands of years; and if they are ever to be farther improved, it must be by foreigners. They have succeeded beyond all hope in what English philanthropists are so industriously working at—in making a people all alike, all governing their thoughts and conduct by the same maxims and rules; and these are the fruits. The modern régime of public opinion is, in an unorganised form, what the Chinese educational and political systems are in an organised; and unless individuality shall be able successfully to assert itself against this yoke, Europe, notwithstanding [Pg 136] its noble antecedents and its professed Christianity, will tend to become another China.

What is it that has hitherto preserved Europe from this lot? What has made the European family of nations an improving, instead of a stationary portion of mankind? Not any superior excellence in them, which, when it exists, exists as the effect, not as the cause; but their remarkable diversity of character and culture. Individuals, classes, nations, have been extremely unlike one another: they have struck out a great variety of paths, each leading to something valuable; and although at every period those who travelled in different paths have been intolerant of one another, and each would have thought it an excellent thing if all the rest could have been compelled to travel his road, their attempts to thwart each other's development have rarely had any permanent success, and each has in time endured to receive the good which the others have offered. Europe is, in my judgment, wholly indebted to this plurality of paths for its progressive and many-sided development. But it already begins to possess this benefit in a considerably less degree. It is decidedly advancing towards the Chinese ideal of making all people alike. M. de Tocqueville, in his last important [Pg 137] work, remarks how much more the Frenchmen of the present day resemble one another, than did those even of the last generation. The same remark might be made of Englishmen in a far greater degree. In a passage already quoted from Wilhelm von Humboldt, he points out two things as necessary conditions of human development, because necessary to render people unlike one another; namely, freedom, and variety of situations. The second of these two conditions is in this country every day diminishing. The circumstances which surround different classes and individuals, and shape their characters, are daily becoming more assimilated. Formerly, different ranks, different neighbourhoods, different trades and professions, lived in what might be called different worlds; at present, to a great degree in the same. Comparatively speaking, they now read the same things, listen to the same things, see the same things, go to the same places, have their hopes and fears directed to the same objects, have the same rights and liberties, and the same means of asserting them. Great as are the differences of position which remain, they are nothing to those which have ceased. And the assimilation is still proceeding. All the political changes of the age promote it, since they all tend [Pg 138] to raise the low and to lower the high. Every extension of education promotes it, because education brings people under common influences, and gives them access to the general stock of facts and sentiments. Improvements in the means of communication promote it, by bringing the inhabitants of distant places into personal contact, and keeping up a rapid flow of changes of residence between one place and another. The increase of commerce and manufactures promotes it, by diffusing more widely the advantages of easy circumstances, and opening all objects of ambition, even the highest, to general competition, whereby the desire of rising becomes no longer the character of a particular class, but of all classes. A more powerful agency than even all these, in bringing about a general similarity among mankind, is the complete establishment, in this and other free countries, of the ascendency of public opinion in the State. As the various social eminences which enabled persons entrenched on them to disregard the opinion of the multitude, gradually become levelled; as the very idea of resisting the will of the public, when it is positively known that they have a will, disappears more and more from the minds of practical politicians; there ceases to be any social support for non-conformity—any [Pg 139] substantive power in society, which, itself opposed to the ascendency of numbers, is interested in taking under its protection opinions and tendencies at variance with those of the public.

The combination of all these causes forms so great a mass of influences hostile to Individuality, that it is not easy to see how it can stand its ground. It will do so with increasing difficulty, unless the intelligent part of the public can be made to feel its value—to see that it is good there should be differences, even though not for the better, even though, as it may appear to them, some should be for the worse. If the claims of Individuality are ever to be asserted, the time is now, while much is still wanting to complete the enforced assimilation. It is only in the earlier stages that any stand can be successfully made against the encroachment. The demand that all other people shall resemble ourselves, grows by what it feeds on. If resistance waits till life is reduced nearly to one uniform type, all deviations from that type will come to be considered impious, immoral, even monstrous and contrary to nature. Mankind speedily become unable to conceive diversity, when they have been for some time unaccustomed to see it.

[11] The Sphere and Duties of Government , from the German of Baron Wilhelm von Humboldt, pp. 11-13.

[12] Sterling's Essays .

[13] There is something both contemptible and frightful in the sort of evidence on which, of late years, any person can be judicially declared unfit for the management of his affairs; and after his death, his disposal of his property can be set aside, if there is enough of it to pay the expenses of litigation—which are charged on the property itself. All the minute details of his daily life are pried into, and whatever is found which, seen through the medium of the perceiving and describing faculties of the lowest of the low, bears an appearance unlike absolute commonplace, is laid before the jury as evidence of insanity, and often with success; the jurors being little, if at all, less vulgar and ignorant than the witnesses; while the judges, with that extraordinary want of knowledge of human nature and life which continually astonishes us in English lawyers, often help to mislead them. These trials speak volumes as to the state of feeling and opinion among the vulgar with regard to human liberty. So far from setting any value on individuality—so far from respecting the rights of each individual to act, in things indifferent, as seems good to his own judgment and inclinations, judges and juries cannot even conceive that a person in a state of sanity can desire such freedom. In former days, when it was proposed to burn atheists, charitable people used to suggest putting them in a madhouse instead: it would be nothing surprising nowadays were we to see this done, and the doers applauding themselves, because, instead of persecuting for religion, they had adopted so humane and Christian a mode of treating these unfortunates, not without a silent satisfaction at their having thereby obtained their deserts.

CHAPTER IV. OF THE LIMITS TO THE AUTHORITY OF SOCIETY OVER THE INDIVIDUAL.

What, then, is the rightful limit to the sovereignty of the individual over himself? Where does the authority of society begin? How much of human life should be assigned to individuality, and how much to society?

Each will receive its proper share, if each has that which more particularly concerns it. To individuality should belong the part of life in which it is chiefly the individual that is interested; to society, the part which chiefly interests society.

Though society is not founded on a contract, and though no good purpose is answered by inventing a contract in order to deduce social obligations from it, every one who receives the protection of society owes a return for the benefit, and the fact of living in society renders it indispensable that each should be bound to [Pg 141] observe a certain line of conduct towards the rest. This conduct 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; and secondly, in each person's bearing his share (to be fixed on some equitable principle) of the labours and sacrifices incurred for defending the society or its members from injury and molestation. These conditions society is justified in enforcing, at all costs to those who endeavour to withhold fulfilment. Nor is this all that society may do. The acts of an individual may be hurtful to others, or wanting in due consideration for their welfare, without going the length of violating any of their constituted rights. The offender may then be justly punished by opinion though not by law. As soon as any part of a person's conduct affects prejudicially the interests of others, society has jurisdiction over it, and the question whether the general welfare will or will not be promoted by interfering with it, becomes open to discussion. But there is no room for entertaining any such question when a person's conduct affects the interests of no persons besides himself, or needs not affect them unless they like (all the persons concerned being of full age, and [Pg 142] the ordinary amount of understanding). In all such cases there should be perfect freedom, legal and social, to do the action and stand the consequences.

It would be a great misunderstanding of this doctrine, to suppose that it is one of selfish indifference, which pretends that human beings have no business with each other's conduct in life, and that they should not concern themselves about the well-doing or well-being of one another, unless their own interest is involved. Instead of any diminution, there is need of a great increase of disinterested exertion to promote the good of others. But disinterested benevolence can find other instruments to persuade people to their good, than whips and scourges, either of the literal or the metaphorical sort. I am the last person to undervalue the self-regarding virtues; they are only second in importance, if even second, to the social. It is equally the business of education to cultivate both. But even education works by conviction and persuasion as well as by compulsion, and it is by the former only that, when the period of education is past, the self-regarding virtues should be inculcated. Human beings owe to each other help to distinguish the better from the worse, and encouragement to choose the [Pg 143] former and avoid the latter. They should be for ever stimulating each other to increased exercise of their higher faculties, and increased direction of their feelings and aims towards wise instead of foolish, elevating instead of degrading, objects and contemplations. But neither one person, nor any number of persons, is warranted in saying to another human creature of ripe years, that he shall not do with his life for his own benefit what he chooses to do with it. He is the person most interested in his own well-being: the interest which any other person, except in cases of strong personal attachment, can have in it, is trifling, compared with that which he himself has; the interest which society has in him individually (except as to his conduct to others) is fractional, and altogether indirect: while, with respect to his own feelings and circumstances, the most ordinary man or woman has means of knowledge immeasurably surpassing those that can be possessed by any one else. The interference of society to overrule his judgment and purposes in what only regards himself, must be grounded on general presumptions; which may be altogether wrong, and even if right, are as likely as not to be misapplied to individual cases, by persons no better acquainted with the circumstances of such [Pg 144] cases than those are who look at them merely from without. In this department, therefore, of human affairs, Individuality has its proper field of action. In the conduct of human beings towards one another, it is necessary that general rules should for the most part be observed, in order that people may know what they have to expect; but in each person's own concerns, his individual spontaneity is entitled to free exercise. Considerations to aid his judgment, exhortations to strengthen his will, may be offered to him, even obtruded on him, by others; but he himself is the final judge. All errors which he is likely to commit against advice and warning, are far outweighed by the evil of allowing others to constrain him to what they deem his good.

I do not mean that the feelings with which a person is regarded by others, ought not to be in any way affected by his self-regarding qualities or deficiencies. This is neither possible nor desirable. If he is eminent in any of the qualities which conduce to his own good, he is, so far, a proper object of admiration. He is so much the nearer to the ideal perfection of human nature. If he is grossly deficient in those qualities, a sentiment the opposite of admiration will follow. There is a degree of folly, and a degree of what may be [Pg 145] called (though the phrase is not unobjectionable) lowness or depravation of taste, which, though it cannot justify doing harm to the person who manifests it, renders him necessarily and properly a subject of distaste, or, in extreme cases, even of contempt: a person could not have the opposite qualities in due strength without entertaining these feelings. Though doing no wrong to any one, a person may so act as to compel us to judge him, and feel to him, as a fool, or as a being of an inferior order: and since this judgment and feeling are a fact which he would prefer to avoid, it is doing him a service to warn him of it beforehand, as of any other disagreeable consequence to which he exposes himself. It would be well, indeed, if this good office were much more freely rendered than the common notions of politeness at present permit, and if one person could honestly point out to another that he thinks him in fault, without being considered unmannerly or presuming. We have a right, also, in various ways, to act upon our unfavourable opinion of any one, not to the oppression of his individuality, but in the exercise of ours. We are not bound, for example, to seek his society; we have a right to avoid it (though not to parade the avoidance), for we have a right to choose the society most acceptable to us. We [Pg 146] have a right, and it may be our duty, to caution others against him, if we think his example or conversation likely to have a pernicious effect on those with whom he associates. We may give others a preference over him in optional good offices, except those which tend to his improvement. In these various modes a person may suffer very severe penalties at the hands of others, for faults which directly concern only himself; but he suffers these penalties only in so far as they are the natural, and, as it were, the spontaneous consequences of the faults themselves, not because they are purposely inflicted on him for the sake of punishment. A person who shows rashness, obstinacy, self-conceit—who cannot live within moderate means—who cannot restrain himself from hurtful indulgences—who pursues animal pleasures at the expense of those of feeling and intellect—must expect to be lowered in the opinion of others, and to have a less share of their favourable sentiments; but of this he has no right to complain, unless he has merited their favour by special excellence in his social relations, and has thus established a title to their good offices, which is not affected by his demerits towards himself.

What I contend for is, that the inconveniences which are strictly inseparable from the [Pg 147] unfavourable judgment of others, are the only ones to which a person should ever be subjected for that portion of his conduct and character which concerns his own good, but which does not affect the interests of others in their relations with him. Acts injurious to others require a totally different treatment. Encroachment on their rights; infliction on them of any loss or damage not justified by his own rights; falsehood or duplicity in dealing with them; unfair or ungenerous use of advantages over them; even selfish abstinence from defending them against injury—these are fit objects of moral reprobation, and, in grave cases, of moral retribution and punishment. And not only these acts, but the dispositions which lead to them, are properly immoral, and fit subjects of disapprobation which may rise to abhorrence. Cruelty of disposition; malice and ill-nature; that most anti-social and odious of all passions, envy; dissimulation and insincerity; irascibility on insufficient cause, and resentment disproportioned to the provocation; the love of domineering over others; the desire to engross more than one's share of advantages (the πλεονεξἱα [Greek: pleonexia] of the Greeks); the pride which derives gratification from the abasement of others; the egotism which thinks self and its concerns more important than [Pg 148] everything else, and decides all doubtful questions in its own favour;—these are moral vices, and constitute a bad and odious moral character: unlike the self-regarding faults previously mentioned, which are not properly immoralities, and to whatever pitch they may be carried, do not constitute wickedness. They may be proofs of any amount of folly, or want of personal dignity and self-respect; but they are only a subject of moral reprobation when they involve a breach of duty to others, for whose sake the individual is bound to have care for himself. What are called duties to ourselves are not socially obligatory, unless circumstances render them at the same time duties to others. The term duty to oneself, when it means anything more than prudence, means self-respect or self-development; and for none of these is any one accountable to his fellow-creatures, because for none of them is it for the good of mankind that he be held accountable to them.

The distinction between the loss of consideration which a person may rightly incur by defect of prudence or of personal dignity, and the reprobation which is due to him for an offence against the rights of others, is not a merely nominal distinction. It makes a vast difference both in our feelings and in our conduct towards him, [Pg 149] whether he displeases us in things in which we think we have a right to control him, or in things in which we know that we have not. If he displeases us, we may express our distaste, and we may stand aloof from a person as well as from a thing that displeases us; but we shall not therefore feel called on to make his life uncomfortable. We shall reflect that he already bears, or will bear, the whole penalty of his error; if he spoils his life by mismanagement, we shall not, for that reason, desire to spoil it still further: instead of wishing to punish him, we shall rather endeavour to alleviate his punishment, by showing him how he may avoid or cure the evils his conduct tends to bring upon him. He may be to us an object of pity, perhaps of dislike, but not of anger or resentment; we shall not treat him like an enemy of society: the worst we shall think ourselves justified in doing is leaving him to himself, if we do not interfere benevolently by showing interest or concern for him. It is far otherwise if he has infringed the rules necessary for the protection of his fellow-creatures, individually or collectively. The evil consequences of his acts do not then fall on himself, but on others; and society, as the protector of all its members, must retaliate on him; must inflict pain on him for the express purpose [Pg 150] of punishment, and must take care that it be sufficiently severe. In the one case, he is an offender at our bar, and we are called on not only to sit in judgment on him, but, in one shape or another, to execute our own sentence: in the other case, it is not our part to inflict any suffering on him, except what may incidentally follow from our using the same liberty in the regulation of our own affairs, which we allow to him in his.

The distinction here pointed out between the part of a person's life which concerns only himself, and that which concerns others, many persons will refuse to admit. How (it may be asked) can any part of the conduct of a member of society be a matter of indifference to the other members? No person is an entirely isolated being; it is impossible for a person to do anything seriously or permanently hurtful to himself, without mischief reaching at least to his near connections, and often far beyond them. If he injures his property, he does harm to those who directly or indirectly derived support from it, and usually diminishes, by a greater or less amount, the general resources of the community. If he deteriorates his bodily or mental faculties, he not only brings evil upon all who depended on him for any portion of their happiness, but disqualifies himself for rendering [Pg 151] the services which he owes to his fellow-creatures generally; perhaps becomes a burthen on their affection or benevolence; and if such conduct were very frequent, hardly any offence that is committed would detract more from the general sum of good. Finally, if by his vices or follies a person does no direct harm to others, he is nevertheless (it may be said) injurious by his example; and ought to be compelled to control himself, for the sake of those whom the sight or knowledge of his conduct might corrupt or mislead.

And even (it will be added) if the consequences of misconduct could be confined to the vicious or thoughtless individual, ought society to abandon to their own guidance those who are manifestly unfit for it? If protection against themselves is confessedly due to children and persons under age, is not society equally bound to afford it to persons of mature years who are equally incapable of self-government? If gambling, or drunkenness, or incontinence, or idleness, or uncleanliness, are as injurious to happiness, and as great a hindrance to improvement, as many or most of the acts prohibited by law, why (it may be asked) should not law, so far as is consistent with practicability and social convenience, endeavour to repress these [Pg 152] also? And as a supplement to the unavoidable imperfections of law, ought not opinion at least to organise a powerful police against these vices, and visit rigidly with social penalties those who are known to practise them? There is no question here (it may be said) about restricting individuality, or impeding the trial of new and original experiments in living. The only things it is sought to prevent are things which have been tried and condemned from the beginning of the world until now; things which experience has shown not to be useful or suitable to any person's individuality. There must be some length of time and amount of experience, after which a moral or prudential truth may be regarded as established: and it is merely desired to prevent generation after generation from falling over the same precipice which has been fatal to their predecessors.

I fully admit that the mischief which a person does to himself, may seriously affect, both through their sympathies and their interests, those nearly connected with him, and in a minor degree, society at large. When, by conduct of this sort, a person is led to violate a distinct and assignable obligation to any other person or persons, the case is taken out of the self-regarding class, and becomes amenable to moral disapprobation in the proper [Pg 153] sense of the term. If, for example, a man, through intemperance or extravagance, becomes unable to pay his debts, or, having undertaken the moral responsibility of a family, becomes from the same cause incapable of supporting or educating them, he is deservedly reprobated, and might be justly punished; but it is for the breach of duty to his family or creditors, not for the extravagance. If the resources which ought to have been devoted to them, had been diverted from them for the most prudent investment, the moral culpability would have been the same. George Barnwell murdered his uncle to get money for his mistress, but if he had done it to set himself up in business, he would equally have been hanged. Again, in the frequent case of a man who causes grief to his family by addiction to bad habits, he deserves reproach for his unkindness or ingratitude; but so he may for cultivating habits not in themselves vicious, if they are painful to those with whom he passes his life, or who from personal ties are dependent on him for their comfort. Whoever fails in the consideration generally due to the interests and feelings of others, not being compelled by some more imperative duty, or justified by allowable self-preference, is a subject of moral disapprobation [Pg 154] for that failure, but not for the cause of it, nor for the errors, merely personal to himself, which may have remotely led to it. In like manner, 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 offence. No person ought to be punished simply for being drunk; but a soldier or a policeman should be punished for being drunk on duty. Whenever, 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.

But with regard to the merely contingent, or, as it may be called, constructive injury which a person causes to society, by conduct which neither violates any specific duty to the public, nor occasions perceptible hurt to any assignable individual except himself; the inconvenience is one which society can afford to bear, for the sake of the greater good of human freedom. If grown persons are to be punished for not taking proper care of themselves, I would rather it were for their own sake, than under pretence of preventing them from impairing their capacity of rendering to society benefits which society does not pretend it [Pg 155] has a right to exact. But I cannot consent to argue the point as if society had no means of bringing its weaker members up to its ordinary standard of rational conduct, except waiting till they do something irrational, and then punishing them, legally or morally, for it. Society has had absolute power over them during all the early portion of their existence: it has had the whole period of childhood and nonage in which to try whether it could make them capable of rational conduct in life. The existing generation is master both of the training and the entire circumstances of the generation to come; it cannot indeed make them perfectly wise and good, because it is itself so lamentably deficient in goodness and wisdom; and its best efforts are not always, in individual cases, its most successful ones; but it is perfectly well able to make the rising generation, as a whole, as good as, and a little better than, itself. If society lets any considerable number of its members grow up mere children, incapable of being acted on by rational consideration of distant motives, society has itself to blame for the consequences. Armed not only with all the powers of education, but with the ascendency which the authority of a received opinion always exercises over the minds who are least fitted to [Pg 156] judge for themselves; and aided by the natural penalties which cannot be prevented from falling on those who incur the distaste or the contempt of those who know them; let not society pretend that it needs, besides all this, the power to issue commands and enforce obedience in the personal concerns of individuals, in which, on all principles of justice and policy, the decision ought to rest with those who are to abide the consequences. Nor is there anything which tends more to discredit and frustrate the better means of influencing conduct, than a resort to the worse. If there be among those whom it is attempted to coerce into prudence or temperance, any of the material of which vigorous and independent characters are made, they will infallibly rebel against the yoke. No such person will ever feel that others have a right to control him in his concerns, such as they have to prevent him from injuring them in theirs; and it easily comes to be considered a mark of spirit and courage to fly in the face of such usurped authority, and do with ostentation the exact opposite of what it enjoins; as in the fashion of grossness which succeeded, in the time of Charles II., to the fanatical moral intolerance of the Puritans. With respect to what is said of the necessity of protecting society from [Pg 157] the bad example set to others by the vicious or the self-indulgent; it is true that bad example may have a pernicious effect, especially the example of doing wrong to others with impunity to the wrong-doer. But we are now speaking of conduct which, while it does no wrong to others, is supposed to do great harm to the agent himself: and I do not see how those who believe this, can think otherwise than that the example, on the whole, must be more salutary than hurtful, since, if it displays the misconduct, it displays also the painful or degrading consequences which, if the conduct is justly censured, must be supposed to be in all or most cases attendant on it.

But the strongest of all the arguments against the interference of the public with purely personal conduct, is that when it does interfere, the odds are that it interferes wrongly, and in the wrong place. On questions of social morality, of duty to others, the opinion of the public, that is, of an overruling majority, though often wrong, is likely to be still oftener right; because on such questions they are only required to judge of their own interests; of the manner in which some mode of conduct, if allowed to be practised, would affect themselves. But the opinion of a similar majority, imposed as a law on the minority, on questions of [Pg 158] self-regarding conduct, is quite as likely to be wrong as right; for in these cases public opinion means, at the best, some people's opinion of what is good or bad for other people; while very often it does not even mean that; the public, with the most perfect indifference, passing over the pleasure or convenience of those whose conduct they censure, and considering only their own preference. There are many who consider as an injury to themselves any conduct which they have a distaste for, and resent it as an outrage to their feelings; as a religious bigot, when charged with disregarding the religious feelings of others, has been known to retort that they disregard his feelings, by persisting in their abominable worship or creed. But there is no parity between the feeling of a person for his own opinion, and the feeling of another who is offended at his holding it; no more than between the desire of a thief to take a purse, and the desire of the right owner to keep it. And a person's taste is as much his own peculiar concern as his opinion or his purse. It is easy for any one to imagine an ideal public, which leaves the freedom and choice of individuals in all uncertain matters undisturbed, and only requires them to abstain from modes of conduct which universal experience has condemned. But where [Pg 159] has there been seen a public which set any such limit to its censorship? or when does the public trouble itself about universal experience? In its interferences with personal conduct it is seldom thinking of anything but the enormity of acting or feeling differently from itself; and this standard of judgment, thinly disguised, is held up to mankind as the dictate of religion and philosophy, by nine-tenths of all moralists and speculative writers. These teach that things are right because they are right; because we feel them to be so. They tell us to search in our own minds and hearts for laws of conduct binding on ourselves and on all others. What can the poor public do but apply these instructions, and make their own personal feelings of good and evil, if they are tolerably unanimous in them, obligatory on all the world?

The evil here pointed out is not one which exists only in theory; and it may perhaps be expected that I should specify the instances in which the public of this age and country improperly invests its own preferences with the character of moral laws. I am not writing an essay on the aberrations of existing moral feeling. That is too weighty a subject to be discussed parenthetically, and by way of illustration. Yet examples are necessary, to show that the principle [Pg 160] I maintain is of serious and practical moment, and that I am not endeavouring to erect a barrier against imaginary evils. And it is not difficult to show, by abundant instances, that to extend the bounds of what may be called moral police, until it encroaches on the most unquestionably legitimate liberty of the individual, is one of the most universal of all human propensities.

As a first instance, consider the antipathies which men cherish on no better grounds than that persons whose religious opinions are different from theirs, do not practise their religious observances, especially their religious abstinences. To cite a rather trivial example, nothing in the creed or practice of Christians does more to envenom the hatred of Mahomedans against them, than the fact of their eating pork. There are few acts which Christians and Europeans regard with more unaffected disgust, than Mussulmans regard this particular mode of satisfying hunger. It is, in the first place, an offence against their religion; but this circumstance by no means explains either the degree or the kind of their repugnance; for wine also is forbidden by their religion, and to partake of it is by all Mussulmans accounted wrong, but not disgusting. Their aversion to the flesh of the "unclean beast" is, [Pg 161] on the contrary, of that peculiar character, resembling an instinctive antipathy, which the idea of uncleanness, when once it thoroughly sinks into the feelings, seems always to excite even in those whose personal habits are anything but scrupulously cleanly, and of which the sentiment of religious impurity, so intense in the Hindoos, is a remarkable example. Suppose now that in a people, of whom the majority were Mussulmans, that majority should insist upon not permitting pork to be eaten within the limits of the country. This would be nothing new in Mahomedan countries. [14] Would it be a legitimate exercise of the moral authority of public opinion? and if not, why not? The practice is really revolting to such a public. They also sincerely [Pg 162] think that it is forbidden and abhorred by the Deity. Neither could the prohibition be censured as religious persecution. It might be religious in its origin, but it would not be persecution for religion, since nobody's religion makes it a duty to eat pork. The only tenable ground of condemnation would be, that with the personal tastes and self-regarding concerns of individuals the public has no business to interfere.

To come somewhat nearer home: the majority of Spaniards consider it a gross impiety, offensive in the highest degree to the Supreme Being, to worship him in any other manner than the Roman Catholic; and no other public worship is lawful on Spanish soil. The people of all Southern Europe look upon a married clergy as not only irreligious, but unchaste, indecent, gross, disgusting. What do Protestants think of these perfectly sincere feelings, and of the attempt to enforce them against non-Catholics? Yet, if mankind are justified in interfering with each other's liberty in things which do not concern the interests of others, on what principle is it possible consistently to exclude these cases? or who can blame people for desiring to suppress what they regard as a scandal in the sight of God and man? No stronger case can be shown for prohibiting [Pg 163] anything which is regarded as a personal immorality, than is made out for suppressing these practices in the eyes of those who regard them as impieties; and unless we are willing to adopt the logic of persecutors, and to say that we may persecute others because we are right, and that they must not persecute us because they are wrong, we must beware of admitting a principle of which we should resent as a gross injustice the application to ourselves.

The preceding instances may be objected to, although unreasonably, as drawn from contingencies impossible among us: opinion, in this country, not being likely to enforce abstinence from meats, or to interfere with people for worshipping, and for either marrying or not marrying, according to their creed or inclination. The next example, however, shall be taken from an interference with liberty which we have by no means passed all danger of. Wherever the Puritans have been sufficiently powerful, as in New England, and in Great Britain at the time of the Commonwealth, they have endeavoured, with considerable success, to put down all public, and nearly all private, amusements: especially music, dancing, public games, or other assemblages for purposes of diversion, and the theatre. There [Pg 164] are still in this country large bodies of persons by whose notions of morality and religion these recreations are condemned; and those persons belonging chiefly to the middle class, who are the ascendant power in the present social and political condition of the kingdom, it is by no means impossible that persons of these sentiments may at some time or other command a majority in Parliament. How will the remaining portion of the community like to have the amusements that shall be permitted to them regulated by the religious and moral sentiments of the stricter Calvinists and Methodists? Would they not, with considerable peremptoriness, desire these intrusively pious members of society to mind their own business? This is precisely what should be said to every government and every public, who have the pretension that no person shall enjoy any pleasure which they think wrong. But if the principle of the pretension be admitted, no one can reasonably object to its being acted on in the sense of the majority, or other preponderating power in the country; and all persons must be ready to conform to the idea of a Christian commonwealth, as understood by the early settlers in New England, if a religious profession similar to theirs should ever succeed in [Pg 165] regaining its lost ground, as religions supposed to be declining have so often been known to do.

To imagine another contingency, perhaps more likely to be realised than the one last mentioned. There is confessedly a strong tendency in the modern world towards a democratic constitution of society, accompanied or not by popular political institutions. It is affirmed that in the country where this tendency is most completely realised—where both society and the government are most democratic—the United States—the feeling of the majority, to whom any appearance of a more showy or costly style of living than they can hope to rival is disagreeable, operates as a tolerably effectual sumptuary law, and that in many parts of the Union it is really difficult for a person possessing a very large income, to find any mode of spending it, which will not incur popular disapprobation. Though such statements as these are doubtless much exaggerated as a representation of existing facts, the state of things they describe is not only a conceivable and possible, but a probable result of democratic feeling, combined with the notion that the public has a right to a veto on the manner in which individuals shall spend their incomes. We have only further to suppose a considerable diffusion of [Pg 166] Socialist opinions, and it may become infamous in the eyes of the majority to possess more property than some very small amount, or any income not earned by manual labour. Opinions similar in principle to these, already prevail widely among the artisan class, and weigh oppressively on those who are amenable to the opinion chiefly of that class, namely, its own members. It is known that the bad workmen who form the majority of the operatives in many branches of industry, are decidedly of opinion that bad workmen ought to receive the same wages as good, and that no one ought to be allowed, through piecework or otherwise, to earn by superior skill or industry more than others can without it. And they employ a moral police, which occasionally becomes a physical one, to deter skilful workmen from receiving, and employers from giving, a larger remuneration for a more useful service. If the public have any jurisdiction over private concerns, I cannot see that these people are in fault, or that any individual's particular public can be blamed for asserting the same authority over his individual conduct, which the general public asserts over people in general.

But, without dwelling upon supposititious cases, there are, in our own day, gross usurpations upon [Pg 167] the liberty of private life actually practised, and still greater ones threatened with some expectation of success, and opinions proposed which assert an unlimited right in the public not only to prohibit by law everything which it thinks wrong, but in order to get at what it thinks wrong, to prohibit any number of things which it admits to be innocent.

Under the name of preventing intemperance, the people of one English colony, and of nearly half the United States, have been interdicted by law from making any use whatever of fermented drinks, except for medical purposes: for prohibition of their sale is in fact, as it is intended to be, prohibition of their use. And though the impracticability of executing the law has caused its repeal in several of the States which had adopted it, including the one from which it derives its name, an attempt has notwithstanding been commenced, and is prosecuted with considerable zeal by many of the professed philanthropists, to agitate for a similar law in this country. The association, or "Alliance" as it terms itself, which has been formed for this purpose, has acquired some notoriety through the publicity given to a correspondence between its Secretary and one of the very few English public men who hold that a [Pg 168] politician's opinions ought to be founded on principles. Lord Stanley's share in this correspondence is calculated to strengthen the hopes already built on him, by those who know how rare such qualities as are manifested in some of his public appearances, unhappily are among those who figure in political life. The organ of the Alliance, who would "deeply deplore the recognition of any principle which could be wrested to justify bigotry and persecution," undertakes to point out the "broad and impassable barrier" which divides such principles from those of the association. "All matters relating to thought, opinion, conscience, appear to me," he says, "to be without the sphere of legislation; all pertaining to social act, habit, relation, subject only to a discretionary power vested in the State itself, and not in the individual, to be within it." No mention is made of a third class, different from either of these, viz. acts and habits which are not social, but individual; although it is to this class, surely, that the act of drinking fermented liquors belongs. Selling fermented liquors, however, is trading, and trading is a social act. But the infringement complained of is not on the liberty of the seller, but on that of the buyer and consumer; since the State might just as well forbid him to drink wine, [Pg 169] as purposely make it impossible for him to obtain it. The Secretary, however, says, "I claim, as a citizen, a right to legislate whenever my social rights are invaded by the social act of another." And now for the definition of these "social rights." "If anything invades my social rights, certainly the traffic in strong drink does. It destroys my primary right of security, by constantly creating and stimulating social disorder. It invades my right of equality, by deriving a profit from the creation of a misery, I am taxed to support. It impedes my right to free moral and intellectual development, by surrounding my path with dangers, and by weakening and demoralising society, from which I have a right to claim mutual aid and intercourse." A theory of "social rights," the like of which probably never before found its way into distinct language—being nothing short of this—that it is the absolute social right of every individual, that every other individual shall act in every respect exactly as he ought; that whosoever fails thereof in the smallest particular, violates my social right, and entitles me to demand from the legislature the removal of the grievance. So monstrous a principle is far more dangerous than any single interference with liberty; there is no violation of liberty which it [Pg 170] would not justify; it acknowledges no right to any freedom whatever, except perhaps to that of holding opinions in secret, without ever disclosing them: for the moment an opinion which I consider noxious, passes any one's lips, it invades all the "social rights" attributed to me by the Alliance. The doctrine ascribes to all mankind a vested interest in each other's moral, intellectual, and even physical perfection, to be defined by each claimant according to his own standard.

Another important example of illegitimate interference with the rightful liberty of the individual, not simply threatened, but long since carried into triumphant effect, is Sabbatarian legislation. Without doubt, abstinence on one day in the week, so far as the exigencies of life permit, from the usual daily occupation, though in no respect religiously binding on any except Jews, is a highly beneficial custom. And inasmuch as this custom cannot be observed without a general consent to that effect among the industrious classes, therefore, in so far as some persons by working may impose the same necessity on others, it may be allowable and right that the law should guarantee to each, the observance by others of the custom, by suspending the greater operations of industry on a particular day. But this justification, grounded on the direct [Pg 171] interest which others have in each individual's observance of the practice, does not apply to the self-chosen occupations in which a person may think fit to employ his leisure; nor does it hold good, in the smallest degree, for legal restrictions on amusements. It is true that the amusement of some is the day's work of others; but the pleasure, not to say the useful recreation, of many, is worth the labour of a few, provided the occupation is freely chosen, and can be freely resigned. The operatives are perfectly right in thinking that if all worked on Sunday, seven days' work would have to be given for six days' wages: but so long as the great mass of employments are suspended, the small number who for the enjoyment of others must still work, obtain a proportional increase of earnings; and they are not obliged to follow those occupations, if they prefer leisure to emolument. If a further remedy is sought, it might be found in the establishment by custom of a holiday on some other day of the week for those particular classes of persons. The only ground, therefore, on which restrictions on Sunday amusements can be defended, must be that they are religiously wrong; a motive of legislation which never can be too earnestly protested against. "Deorum injuriæ Diis curæ." It remains to be proved that society [Pg 172] or any of its officers holds a commission from on high to avenge any supposed offence to Omnipotence, which is not also a wrong to our fellow-creatures. The notion that it is one man's duty that another should be religious, was the foundation of all the religious persecutions ever perpetrated, and if admitted, would fully justify them. Though the feeling which breaks out in the repeated attempts to stop railway travelling on Sunday, in the resistance to the opening of Museums, and the like, has not the cruelty of the old persecutors, the state of mind indicated by it is fundamentally the same. It is a determination not to tolerate others in doing what is permitted by their religion, because it is not permitted by the persecutor's religion. It is a belief that God not only abominates the act of the misbeliever, but will not hold us guiltless if we leave him unmolested.

I cannot refrain from adding to these examples of the little account commonly made of human liberty, the language of downright persecution which breaks out from the press of this country, whenever it feels called on to notice the remarkable phenomenon of Mormonism. Much might be said on the unexpected and instructive fact, that an alleged new revelation, and a religion founded [Pg 173] on it, the product of palpable imposture, not even supported by the prestige of extraordinary qualities in its founder, is believed by hundreds of thousands, and has been made the foundation of a society, in the age of newspapers, railways, and the electric telegraph. What here concerns us is, that this religion, like other and better religions, has its martyrs; that its prophet and founder was, for his teaching, put to death by a mob; that others of its adherents lost their lives by the same lawless violence; that they were forcibly expelled, in a body, from the country in which they first grew up; while, now that they have been chased into a solitary recess in the midst of a desert, many in this country openly declare that it would be right (only that it is not convenient) to send an expedition against them, and compel them by force to conform to the opinions of other people. The article of the Mormonite doctrine which is the chief provocative to the antipathy which thus breaks through the ordinary restraints of religious tolerance, is its sanction of polygamy; which, though permitted to Mahomedans, and Hindoos, and Chinese, seems to excite unquenchable animosity when practised by persons who speak English, and profess to be a kind of Christians. No one has a deeper disapprobation than I have [Pg 174] of this Mormon institution; both for other reasons, and because, far from being in any way countenanced by the principle of liberty, it is a direct infraction of that principle, being a mere riveting of the chains of one half of the community, and an emancipation of the other from reciprocity of obligation towards them. Still, it must be remembered that this relation is as much voluntary on the part of the women concerned in it, and who may be deemed the sufferers by it, as is the case with any other form of the marriage institution; and however surprising this fact may appear, it has its explanation in the common ideas and customs of the world, which teaching women to think marriage the one thing needful, make it intelligible that many a woman should prefer being one of several wives, to not being a wife at all. Other countries are not asked to recognise such unions, or release any portion of their inhabitants from their own laws on the score of Mormonite opinions. But when the dissentients have conceded to the hostile sentiments of others, far more than could justly be demanded; when they have left the countries to which their doctrines were unacceptable, and established themselves in a remote corner of the earth, which they have been the first to render habitable to human [Pg 175] beings; it is difficult to see on what principles but those of tyranny they can be prevented from living there under what laws they please, provided they commit no aggression on other nations, and allow perfect freedom of departure to those who are dissatisfied with their ways. A recent writer, in some respects of considerable merit, proposes (to use his own words), not a crusade, but a civilizade , against this polygamous community, to put an end to what seems to him a retrograde step in civilisation. It also appears so to me, but I am not aware that any community has a right to force another to be civilised. So long as the sufferers by the bad law do not invoke assistance from other communities, I cannot admit that persons entirely unconnected with them ought to step in and require that a condition of things with which all who are directly interested appear to be satisfied, should be put an end to because it is a scandal to persons some thousands of miles distant, who have no part or concern in it. Let them send missionaries, if they please, to preach against it; and let them, by any fair means (of which silencing the teachers is not one), oppose the progress of similar doctrines among their own people. If civilisation has got the better of barbarism when barbarism had the world to itself, [Pg 176] it is too much to profess to be afraid lest barbarism, after having been fairly got under, should revive and conquer civilisation. A civilisation that can thus succumb to its vanquished enemy, must first have become so degenerate, that neither its appointed priests and teachers, nor anybody else, has the capacity, or will take the trouble, to stand up for it. If this be so, the sooner such a civilisation receives notice to quit, the better. It can only go on from bad to worse, until destroyed and regenerated (like the Western Empire) by energetic barbarians.

[14] The case of the Bombay Parsees is a curious instance in point. When this industrious and enterprising tribe, the descendants of the Persian fire-worshippers, flying from their native country before the Caliphs, arrived in Western India, they were admitted to toleration by the Hindoo sovereigns, on condition of not eating beef. When those regions afterwards fell under the dominion of Mahomedan conquerors, the Parsees obtained from them a continuance of indulgence, on condition of refraining from pork. What was at first obedience to authority became a second nature, and the Parsees to this day abstain both from beef and pork. Though not required by their religion, the double abstinence has had time to grow into a custom of their tribe; and custom, in the East, is a religion.

CHAPTER V. APPLICATIONS.

The principles asserted in these pages must be more generally admitted as the basis for discussion of details, before a consistent application of them to all the various departments of government and morals can be attempted with any prospect of advantage. The few observations I propose to make on questions of detail, are designed to illustrate the principles, rather than to follow them out to their consequences. I offer, not so much applications, as specimens of application; which may serve to bring into greater clearness the meaning and limits of the two maxims which together form the entire doctrine of this Essay, and to assist the judgment in holding the balance between them, in the cases where it appears doubtful which of them is applicable to the case.

The maxims are, first, that the individual is not accountable to society for his actions, in so far as [Pg 178] these concern the interests of no person but himself. Advice, instruction, persuasion, and avoidance by other people if thought necessary by them for their own good, are the only measures by which society can justifiably express its dislike or disapprobation of his conduct. Secondly, that for such actions as are prejudicial to the interests of others, the individual is accountable and may be subjected either to social or to legal punishments, if society is of opinion that the one or the other is requisite for its protection.

In the first place, it must by no means be supposed, because damage, or probability of damage, to the interests of others, can alone justify the interference of society, that therefore it always does justify such interference. In many cases, an individual, in pursuing a legitimate object, necessarily and therefore legitimately causes pain or loss to others, or intercepts a good which they had a reasonable hope of obtaining. Such oppositions of interest between individuals often arise from bad social institutions, but are unavoidable while those institutions last; and some would be unavoidable under any institutions. Whoever succeeds in an overcrowded profession, or in a competitive examination; whoever is preferred to another in any contest for an object [Pg 179] which both desire, reaps benefit from the loss of others, from their wasted exertion and their disappointment. But it is, by common admission, better for the general interest of mankind, that persons should pursue their objects undeterred by this sort of consequences. In other words, society admits no rights, either legal or moral, in the disappointed competitors, to immunity from this kind of suffering; and feels called on to interfere, only when means of success have been employed which it is contrary to the general interest to permit—namely, fraud or treachery, and force.

Again, trade is a social act. Whoever undertakes to sell any description of goods to the public, does what affects the interest of other persons, and of society in general; and thus his conduct, in principle, comes within the jurisdiction of society: accordingly, it was once held to be the duty of governments, in all cases which were considered of importance, to fix prices, and regulate the processes of manufacture. But it is now recognised, though not till after a long struggle, that both the cheapness and the good quality of commodities are most effectually provided for by leaving the producers and sellers perfectly free, under the sole check of equal [Pg 180] freedom to the buyers for supplying themselves elsewhere. This is the so-called doctrine of Free Trade, which rests on grounds different from, though equally solid with, the principle of individual liberty asserted in this Essay. Restrictions on trade, or on production for purposes of trade, are indeed restraints; and all restraint, quâ restraint, is an evil: but the restraints in question affect only that part of conduct which society is competent to restrain, and are wrong solely because they do not really produce the results which it is desired to produce by them. As the principle of individual liberty is not involved in the doctrine of Free Trade, so neither is it in most of the questions which arise respecting the limits of that doctrine: as for example, what amount of public control is admissible for the prevention of fraud by adulteration; how far sanitary precautions, or arrangements to protect work-people employed in dangerous occupations, should be enforced on employers. Such questions involve considerations of liberty, only in so far as leaving people to themselves is always better, cæteris paribus , than controlling them: but that they may be legitimately controlled for these ends, is in principle undeniable. On the other hand, there are questions relating to interference with trade, [Pg 181] which are essentially questions of liberty; such as the Maine Law, already touched upon; the prohibition of the importation of opium into China; the restriction of the sale of poisons; all cases, in short, where the object of the interference is to make it impossible or difficult to obtain a particular commodity. These interferences are objectionable, not as infringements on the liberty of the producer or seller, but on that of the buyer.

One of these examples, that of the sale of poisons, opens a new question; the proper limits of what may be called the functions of police; how far liberty may legitimately be invaded for the prevention of crime, or of accident. It is one of the undisputed functions of government to take precautions against crime before it has been committed, as well as to detect and punish it afterwards. The preventive function of government, however, is far more liable to be abused, to the prejudice of liberty, than the punitory function; for there is hardly any part of the legitimate freedom of action of a human being which would not admit of being represented, and fairly too, as increasing the facilities for some form or other of delinquency. Nevertheless, if a public authority, or even a private person, sees any one [Pg 182] evidently preparing to commit a crime, they are not bound to look on inactive until the crime is committed, but may interfere to prevent it. If poisons were never bought or used for any purpose except the commission of murder, it would be right to prohibit their manufacture and sale. They may, however, be wanted not only for innocent but for useful purposes, and restrictions cannot be imposed in the one case without operating in the other. Again, it is a proper office of public authority to guard against accidents. If either a public officer or any one else saw a person attempting to cross a bridge which had been ascertained to be unsafe, and there were no time to warn him of his danger, they might seize him and turn him back, without any real infringement of his liberty; for liberty consists in doing what one desires, and he does not desire to fall into the river. Nevertheless, when there is not a certainty, but only a danger of mischief, no one but the person himself can judge of the sufficiency of the motive which may prompt him to incur the risk: in this case, therefore (unless he is a child, or delirious, or in some state of excitement or absorption incompatible with the full use of the reflecting faculty), he ought, I conceive, to be only warned of the danger; not forcibly prevented from [Pg 183] exposing himself to it. Similar considerations, applied to such a question as the sale of poisons, may enable us to decide which among the possible modes of regulation are or are not contrary to principle. Such a precaution, for example, as that of labelling the drug with some word expressive of its dangerous character, may be enforced without violation of liberty: the buyer cannot wish not to know that the thing he possesses has poisonous qualities. But to require in all cases the certificate of a medical practitioner, would make it sometimes impossible, always expensive, to obtain the article for legitimate uses. The only mode apparent to me, in which difficulties may be thrown in the way of crime committed through this means, without any infringement, worth taking into account, upon the liberty of those who desire the poisonous substance for other purposes, consists in providing what, in the apt language of Bentham, is called "preappointed evidence." This provision is familiar to every one in the case of contracts. It is usual and right that the law, when a contract is entered into, should require as the condition of its enforcing performance, that certain formalities should be observed, such as signatures, attestation of witnesses, and the like, in order that in case of subsequent dispute, there may be [Pg 184] evidence to prove that the contract was really entered into, and that there was nothing in the circumstances to render it legally invalid: the effect being, to throw great obstacles in the way of fictitious contracts, or contracts made in circumstances which, if known, would destroy their validity. Precautions of a similar nature might be enforced in the sale of articles adapted to be instruments of crime. The seller, for example, might be required to enter into a register the exact time of the transaction, the name and address of the buyer, the precise quality and quantity sold; to ask the purpose for which it was wanted, and record the answer he received. When there was no medical prescription, the presence of some third person might be required, to bring home the fact to the purchaser, in case there should afterwards be reason to believe that the article had been applied to criminal purposes. Such regulations would in general be no material impediment to obtaining the article, but a very considerable one to making an improper use of it without detection.

The right inherent in society, to ward off crimes against itself by antecedent precautions, suggests the obvious limitations to the maxim, that purely self-regarding misconduct cannot properly be [Pg 185] meddled with in the way of prevention or punishment. Drunkenness, for example, in ordinary cases, is not a fit subject for legislative interference; but I should deem it perfectly legitimate that a person, who had once been convicted of any act of violence to others under the influence of drink, should be placed under a special legal restriction, personal to himself; that if he were afterwards found drunk, he should be liable to a penalty, and that if when in that state he committed another offence, the punishment to which he would be liable for that other offence should be increased in severity. The making himself drunk, in a person whom drunkenness excites to do harm to others, is a crime against others. So, again, idleness, except in a person receiving support from the public, or except when it constitutes a breach of contract, cannot without tyranny be made a subject of legal punishment; but if either from idleness or from any other avoidable cause, a man fails to perform his legal duties to others, as for instance to support his children, it is no tyranny to force him to fulfil that obligation, by compulsory labour, if no other means are available.

Again, there are many acts which, being directly injurious only to the agents themselves, ought not to be legally interdicted, but which, if done [Pg 186] publicly, are a violation of good manners and coming thus within the category of offences against others may rightfully be prohibited. Of this kind are offences against decency; on which it is unnecessary to dwell, the rather as they are only connected indirectly with our subject, the objection to publicity being equally strong in the case of many actions not in themselves condemnable, nor supposed to be so.

There is another question to which an answer must be found, consistent with the principles which have been laid down. In cases of personal conduct supposed to be blamable, but which respect for liberty precludes society from preventing or punishing, because the evil directly resulting falls wholly on the agent; what the agent is free to do, ought other persons to be equally free to counsel or instigate? This question is not free from difficulty. The case of a person who solicits another to do an act, is not strictly a case of self-regarding conduct. To give advice or offer inducements to any one, is a social act, and may therefore, like actions in general which affect others, be supposed amenable to social control. But a little reflection corrects the first impression, by showing that if the case is not strictly within the definition of individual liberty, yet the reasons [Pg 187] on which the principle of individual liberty is grounded, are applicable to it. If people must be allowed, in whatever concerns only themselves, to act as seems best to themselves at their own peril, they must equally be free to consult with one another about what is fit to be so done; to exchange opinions, and give and receive suggestions. Whatever it is permitted to do, it must be permitted to advise to do. The question is doubtful, only when the instigator derives a personal benefit from his advice; when he makes it his occupation, for subsistence or pecuniary gain, to promote what society and the state consider to be an evil. Then, indeed, a new element of complication is introduced; namely, the existence of classes of persons with an interest opposed to what is considered as the public weal, and whose mode of living is grounded on the counteraction of it. Ought this to be interfered with, or not? Fornication, for example, must be tolerated, and so must gambling; but should a person be free to be a pimp, or to keep a gambling-house? The case is one of those which lie on the exact boundary line between two principles, and it is not at once apparent to which of the two it properly belongs. There are arguments on both sides. On the side of toleration it may be said, that the fact [Pg 188] of following anything as an occupation, and living or profiting by the practice of it, cannot make that criminal which would otherwise be admissible; that the act should either be consistently permitted or consistently prohibited; that if the principles which we have hitherto defended are true, society has no business, as society, to decide anything to be wrong which concerns only the individual; that it cannot go beyond dissuasion, and that one person should be as free to persuade, as another to dissuade. In opposition to this it may be contended, that although the public, or the State, are not warranted in authoritatively deciding, for purposes of repression or punishment, that such or such conduct affecting only the interests of the individual is good or bad, they are fully justified in assuming, if they regard it as bad, that its being so or not is at least a disputable question: That, this being supposed, they cannot be acting wrongly in endeavouring to exclude the influence of solicitations which are not disinterested, of instigators who cannot possibly be impartial—who have a direct personal interest on one side, and that side the one which the State believes to be wrong, and who confessedly promote it for personal objects only. There can surely, it may be urged, be nothing lost, no sacrifice of good, by [Pg 189] so ordering matters that persons shall make their election, either wisely or foolishly, on their own prompting, as free as possible from the arts of persons who stimulate their inclinations for interested purposes of their own. Thus (it may be said) though the statutes respecting unlawful games are utterly indefensible—though all persons should be free to gamble in their own or each other's houses, or in any place of meeting established by their own subscriptions, and open only to the members and their visitors—yet public gambling-houses should not be permitted. It is true that the prohibition is never effectual, and that whatever amount of tyrannical power is given to the police, gambling-houses can always be maintained under other pretences; but they may be compelled to conduct their operations with a certain degree of secrecy and mystery, so that nobody knows anything about them but those who seek them; and more than this, society ought not to aim at. There is considerable force in these arguments; I will not venture to decide whether they are sufficient to justify the moral anomaly of punishing the accessary, when the principal is (and must be) allowed to go free; or fining or imprisoning the procurer, but not the fornicator, the gambling-house keeper, but not the gambler. [Pg 190] Still less ought the common operations of buying and selling to be interfered with on analogous grounds. Almost every article which is bought and sold may be used in excess, and the sellers have a pecuniary interest in encouraging that excess; but no argument can be founded on this, in favour, for instance, of the Maine Law; because the class of dealers in strong drinks, though interested in their abuse, are indispensably required for the sake of their legitimate use. The interest, however, of these dealers in promoting intemperance is a real evil, and justifies the State in imposing restrictions and requiring guarantees, which but for that justification would be infringements of legitimate liberty.

A further question is, whether the State, while it permits, should nevertheless indirectly discourage conduct which it deems contrary to the best interests of the agent; whether, for example, it should take measures to render the means of drunkenness more costly, or add to the difficulty of procuring them, by limiting the number of the places of sale. On this as on most other practical questions, many distinctions require to be made. To tax stimulants for the sole purpose of making them more difficult to be obtained, is a measure differing only in degree from their entire [Pg 191] prohibition; and would be justifiable only if that were justifiable. Every increase of cost is a prohibition, to those whose means do not come up to the augmented price; and to those who do, it is a penalty laid on them for gratifying a particular taste. Their choice of pleasures, and their mode of expending their income, after satisfying their legal and moral obligations to the State and to individuals, are their own concern, and must rest with their own judgment. These considerations may seem at first sight to condemn the selection of stimulants as special subjects of taxation for purposes of revenue. But it must be remembered that taxation for fiscal purposes is absolutely inevitable; that in most countries it is necessary that a considerable part of that taxation should be indirect; that the State, therefore, cannot help imposing penalties, which to some persons may be prohibitory, on the use of some articles of consumption. It is hence the duty of the State to consider, in the imposition of taxes, what commodities the consumers can best spare; and à fortiori , to select in preference those of which it deems the use, beyond a very moderate quantity, to be positively injurious. Taxation, therefore, of stimulants, up to the point which produces the largest amount of revenue (supposing that the [Pg 192] State needs all the revenue which it yields) is not only admissible, but to be approved of.

The question of making the sale of these commodities a more or less exclusive privilege, must be answered differently, according to the purposes to which the restriction is intended to be subservient. All places of public resort require the restraint of a police, and places of this kind peculiarly, because offences against society are especially apt to originate there. It is, therefore, fit to confine the power of selling these commodities (at least for consumption on the spot) to persons of known or vouched-for respectability of conduct; to make such regulations respecting hours of opening and closing as may be requisite for public surveillance, and to withdraw the licence if breaches of the peace repeatedly take place through the connivance or incapacity of the keeper of the house, or if it becomes a rendezvous for concocting and preparing offences against the law. Any further restriction I do not conceive to be, in principle, justifiable. The limitation in number, for instance, of beer and spirit-houses, for the express purpose of rendering them more difficult of access, and diminishing the occasions of temptation, not only exposes all to an inconvenience because there are some by whom the [Pg 193] facility would be abused, but is suited only to a state of society in which the labouring classes are avowedly treated as children or savages, and placed under an education of restraint, to fit them for future admission to the privileges of freedom. This is not the principle on which the labouring classes are professedly governed in any free country; and no person who sets due value on freedom will give his adhesion to their being so governed, unless after all efforts have been exhausted to educate them for freedom and govern them as freemen, and it has been definitively proved that they can only be governed as children. The bare statement of the alternative shows the absurdity of supposing that such efforts have been made in any case which needs be considered here. It is only because the institutions of this country are a mass of inconsistencies, that things find admittance into our practice which belong to the system of despotic, or what is called paternal, government, while the general freedom of our institutions precludes the exercise of the amount of control necessary to render the restraint of any real efficacy as a moral education.

It was pointed out in an early part of this Essay, that the liberty of the individual, in things wherein the individual is alone concerned, [Pg 194] implies a corresponding liberty in any number of individuals to regulate by mutual agreement such things as regard them jointly, and regard no persons but themselves. This question presents no difficulty, so long as the will of all the persons implicated remains unaltered; but since that will may change, it is often necessary, even in things in which they alone are concerned, that they should enter into engagements with one another; and when they do, it is fit, as a general rule, that those engagements should be kept. Yet in the laws, probably, of every country, this general rule has some exceptions. Not only persons are not held to engagements which violate the rights of third parties, but it is sometimes considered a sufficient reason for releasing them from an engagement, that it is injurious to themselves. In this and most other civilised countries, for example, an engagement by which a person should sell himself, or allow himself to be sold, as a slave, would be null and void; neither enforced by law nor by opinion. The ground for thus limiting his power of voluntarily disposing of his own lot in life, is apparent, and is very clearly seen in this extreme case. The reason for not interfering, unless for the sake of others, with a person's voluntary acts, is consideration for his [Pg 195] liberty. His voluntary choice is evidence that what he so chooses is desirable, or at the least endurable, to him, and his good is on the whole best provided for by allowing him to take his own means of pursuing it. But by selling himself for a slave, he abdicates his liberty; he foregoes any future use of it, beyond that single act. He therefore defeats, in his own case, the very purpose which is the justification of allowing him to dispose of himself. He is no longer free; but is thenceforth in a position which has no longer the presumption in its favour, that would be afforded by his voluntarily remaining in it. The principle of freedom cannot require that he should be free not to be free. It is not freedom, to be allowed to alienate his freedom. These reasons, the force of which is so conspicuous in this peculiar case, are evidently of far wider application; yet a limit is everywhere set to them by the necessities of life, which continually require, not indeed that we should resign our freedom, but that we should consent to this and the other limitation of it. The principle, however, which demands uncontrolled freedom of action in all that concerns only the agents themselves, requires that those who have become bound to one another, in things which concern no third party, should be able to release [Pg 196] one another from the engagement: and even without such voluntary release, there are perhaps no contracts or engagements, except those that relate to money or money's worth, of which one can venture to say that there ought to be no liberty whatever of retractation. Baron Wilhelm von Humboldt, in the excellent essay from which I have already quoted, states it as his conviction, that engagements which involve personal relations or services, should never be legally binding beyond a limited duration of time; and that the most important of these engagements, marriage, having the peculiarity that its objects are frustrated unless the feelings of both the parties are in harmony with it, should require nothing more than the declared will of either party to dissolve it. This subject is too important, and too complicated, to be discussed in a parenthesis, and I touch on it only so far as is necessary for purposes of illustration. If the conciseness and generality of Baron Humboldt's dissertation had not obliged him in this instance to content himself with enunciating his conclusion without discussing the premises, he would doubtless have recognised that the question cannot be decided on grounds so simple as those to which he confines himself. When a person, either by express promise or by conduct, has [Pg 197] encouraged another to rely upon his continuing to act in a certain way—to build expectations and calculations, and stake any part of his plan of life upon that supposition, a new series of moral obligations arises on his part towards that person, which may possibly be overruled, but cannot be ignored. And again, if the relation between two contracting parties has been followed by consequences to others; if it has placed third parties in any peculiar position, or, as in the case of marriage, has even called third parties into existence, obligations arise on the part of both the contracting parties towards those third persons, the fulfilment of which, or at all events the mode of fulfilment, must be greatly affected by the continuance or disruption of the relation between the original parties to the contract. It does not follow, nor can I admit, that these obligations extend to requiring the fulfilment of the contract at all costs to the happiness of the reluctant party; but they are a necessary element in the question; and even if, as Von Humboldt maintains, they ought to make no difference in the legal freedom of the parties to release themselves from the engagement (and I also hold that they ought not to make much difference), they necessarily make a great difference in the moral [Pg 198] freedom. A person is bound to take all these circumstances into account, before resolving on a step which may affect such important interests of others; and if he does not allow proper weight to those interests, he is morally responsible for the wrong. I have made these obvious remarks for the better illustration of the general principle of liberty, and not because they are at all needed on the particular question, which, on the contrary, is usually discussed as if the interest of children was everything, and that of grown persons nothing.

I have already observed that, owing to the absence of any recognised general principles, liberty is often granted where it should be withheld, as well as withheld where it should be granted; and one of the cases in which, in the modern European world, the sentiment of liberty is the strongest, is a case where, in my view, it is altogether misplaced. A person should be free to do as he likes in his own concerns; but he ought not to be free to do as he likes in acting for another, under the pretext that the affairs of another are his own affairs. The State, while it respects the liberty of each in what specially regards himself, is bound to maintain a vigilant control over his exercise of any power which it allows him to possess over others. This [Pg 199] obligation is almost entirely disregarded in the case of the family relations, a case, in its direct influence on human happiness, more important than all others taken together. The almost despotic power of husbands over wives need not be enlarged upon here because nothing more is needed for the complete removal of the evil, than that wives should have the same rights, and should receive the protection of law in the same manner, as all other persons; and because, on this subject, the defenders of established injustice do not avail themselves of the plea of liberty, but stand forth openly as the champions of power. It is in the case of children, that misapplied notions of liberty are a real obstacle to the fulfilment by the State of its duties. One would almost think that a man's children were supposed to be literally, and not metaphorically, a part of himself, so jealous is opinion of the smallest interference of law with his absolute and exclusive control over them; more jealous than of almost any interference with his own freedom of action: so much less do the generality of mankind value liberty than power. Consider, for example, the case of education. Is it not almost a self-evident axiom, that the State should require and compel the education, up to a certain standard, of every human being who is born its [Pg 200] citizen? Yet who is there that is not afraid to recognise and assert this truth? Hardly any one indeed will deny that it is one of the most sacred duties of the parents (or, as law and usage now stand, the father), after summoning a human being into the world, to give to that being an education fitting him to perform his part well in life towards others and towards himself. But while this is unanimously declared to be the father's duty, scarcely anybody, in this country, will bear to hear of obliging him to perform it. Instead of his being required to make any exertion or sacrifice for securing education to the child, it is left to his choice to accept it or not when it is provided gratis! It still remains unrecognised, that to bring a child into existence without a fair prospect of being able, not only to provide food for its body, but instruction and training for its mind, is a moral crime, both against the unfortunate offspring and against society; and that if the parent does not fulfil this obligation, the State ought to see it fulfilled, at the charge, as far as possible, of the parent.

Were the duty of enforcing universal education once admitted, there would be an end to the difficulties about what the State should teach, and how it should teach, which now convert the subject into a mere battle-field for sects and [Pg 201] parties, causing the time and labour which should have been spent in educating, to be wasted in quarrelling about education. If the government would make up its mind to require for every child a good education, it might save itself the trouble of providing one. It might leave to parents to obtain the education where and how they pleased, and content itself with helping to pay the school fees of the poorer class of children, and defraying the entire school expenses of those who have no one else to pay for them. The objections which are urged with reason against State education, do not apply to the enforcement of education by the State, but to the State's taking upon itself to direct that education; which is a totally different thing. That the whole or any large part of the education of the people should be in State hands, I go as far as any one in deprecating. All that has been said of the importance of individuality of character, and diversity in opinions and modes of conduct, involves, as of the same unspeakable importance, diversity of education. A general State education is a mere contrivance for moulding people to be exactly like one another; and as the mould in which it casts them is that which pleases the predominant power in the government, whether this be a monarch, a priesthood, an aristocracy, or the [Pg 202] majority of the existing generation, in proportion as it is efficient and successful, it establishes a despotism over the mind, leading by natural tendency to one over the body. An education established and controlled by the State, should only exist, if it exist at all, as one among many competing experiments, carried on for the purpose of example and stimulus, to keep the others up to a certain standard of excellence. Unless, indeed, when society in general is in so backward a state that it could not or would not provide for itself any proper institutions of education, unless the government undertook the task; then, indeed, the government may, as the less of two great evils, take upon itself the business of schools and universities, as it may that of joint stock companies, when private enterprise, in a shape fitted for undertaking great works of industry, does not exist in the country. But in general, if the country contains a sufficient number of persons qualified to provide education under government auspices, the same persons would be able and willing to give an equally good education on the voluntary principle, under the assurance of remuneration afforded by a law rendering education compulsory, combined with State aid to those unable to defray the expense.

The instrument for enforcing the law could be no other than public examinations, extending to all children, and beginning at an early age. An age might be fixed at which every child must be examined, to ascertain if he (or she) is able to read. If a child proves unable, the father, unless he has some sufficient ground of excuse, might be subjected to a moderate fine, to be worked out, if necessary, by his labour, and the child might be put to school at his expense. Once in every year the examination should be renewed, with a gradually extending range of subjects, so as to make the universal acquisition, and what is more, retention, of a certain minimum of general knowledge, virtually compulsory. Beyond that minimum, there should be voluntary examinations on all subjects, at which all who come up to a certain standard of proficiency might claim a certificate. To prevent the State from exercising, through these arrangements, an improper influence over opinion, the knowledge required for passing an examination (beyond the merely instrumental parts of knowledge, such as languages and their use) should, even in the higher class of examinations, be confined to facts and positive science exclusively. The examinations on religion, politics, or other disputed topics, should not turn on the [Pg 204] truth or falsehood of opinions, but on the matter of fact that such and such an opinion is held, on such grounds, by such authors, or schools, or churches. Under this system, the rising generation would be no worse off in regard to all disputed truths, than they are at present; they would be brought up either churchmen or dissenters as they now are, the state merely taking care that they should be instructed churchmen, or instructed dissenters. There would be nothing to hinder them from being taught religion, if their parents chose, at the same schools where they were taught other things. All attempts by the state to bias the conclusions of its citizens on disputed subjects, are evil; but it may very properly offer to ascertain and certify that a person possesses the knowledge, requisite to make his conclusions, on any given subject, worth attending to. A student of philosophy would be the better for being able to stand an examination both in Locke and in Kant, whichever of the two he takes up with, or even if with neither: and there is no reasonable objection to examining an atheist in the evidences of Christianity, provided he is not required to profess a belief in them. The examinations, however, in the higher branches of knowledge should, I conceive, be entirely voluntary. It would be giving [Pg 205] too dangerous a power to governments, were they allowed to exclude any one from professions, even from the profession of teacher, for alleged deficiency of qualifications: and I think, with Wilhelm von Humboldt, that degrees, or other public certificates of scientific or professional acquirements, should be given to all who present themselves for examination, and stand the test; but that such certificates should confer no advantage over competitors, other than the weight which may be attached to their testimony by public opinion.

It is not in the matter of education only, that misplaced notions of liberty prevent moral obligations on the part of parents from being recognised, and legal obligations from being imposed, where there are the strongest grounds for the former always, and in many cases for the latter also. The fact itself, of causing the existence of a human being, is one of the most responsible actions in the range of human life. To undertake this responsibility—to bestow a life which may be either a curse or a blessing—unless the being on whom it is to be bestowed will have at least the ordinary chances of a desirable existence, is a crime against that being. And in a country either over-peopled, or threatened with being so, to produce children, beyond a very small number, [Pg 206] with the effect of reducing the reward of labour by their competition, is a serious offence against all who live by the remuneration of their labour. The laws which, in many countries on the Continent, forbid marriage unless the parties can show that they have the means of supporting a family, do not exceed the legitimate powers of the state: and whether such laws be expedient or not (a question mainly dependent on local circumstances and feelings), they are not objectionable as violations of liberty. Such laws are interferences of the state to prohibit a mischievous act—an act injurious to others, which ought to be a subject of reprobation, and social stigma, even when it is not deemed expedient to superadd legal punishment. Yet the current ideas of liberty, which bend so easily to real infringements of the freedom of the individual, in things which concern only himself, would repel the attempt to put any restraint upon his inclinations when the consequence of their indulgence is a life, or lives, of wretchedness and depravity to the offspring, with manifold evils to those sufficiently within reach to be in any way affected by their actions. When we compare the strange respect of mankind for liberty, with their strange want of respect for it, we might imagine that a man had an indispensable [Pg 207] right to do harm to others, and no right at all to please himself without giving pain to any one.

I have reserved for the last place a large class of questions respecting the limits of government interference, which, though closely connected with the subject of this Essay, do not, in strictness, belong to it. These are cases in which the reasons against interference do not turn upon the principle of liberty: the question is not about restraining the actions of individuals, but about helping them: it is asked whether the government should do, or cause to be done, something for their benefit, instead of leaving it to be done by themselves, individually, or in voluntary combination.

The objections to government interference, when it is not such as to involve infringement of liberty, may be of three kinds.

The first is, when the thing to be done is likely to be better done by individuals than by the government. Speaking generally, there is no one so fit to conduct any business, or to determine how or by whom it shall be conducted, as those who are personally interested in it. This principle condemns the interferences, once so common, of the legislature, or the officers of government, with the ordinary processes of industry. But this part of the subject has been sufficiently enlarged upon [Pg 208] by political economists, and is not particularly related to the principles of this Essay.

The second objection is more nearly allied to our subject. In many cases, though individuals may not do the particular thing so well, on the average, as the officers of government, it is nevertheless desirable that it should be done by them, rather than by the government, as a means to their own mental education—a mode of strengthening their active faculties, exercising their judgment, and giving them a familiar knowledge of the subjects with which they are thus left to deal. This is a principal, though not the sole, recommendation of jury trial (in cases not political); of free and popular local and municipal institutions; of the conduct of industrial and philanthropic enterprises by voluntary associations. These are not questions of liberty, and are connected with that subject only by remote tendencies; but they are questions of development. It belongs to a different occasion from the present to dwell on these things as parts of national education; as being, in truth, the peculiar training of a citizen, the practical part of the political education of a free people, taking them out of the narrow circle of personal and family selfishness, and accustoming them to the comprehension of [Pg 209] joint interests, the management of joint concerns—habituating them to act from public or semi-public motives, and guide their conduct by aims which unite instead of isolating them from one another. Without these habits and powers, a free constitution can neither be worked nor preserved, as is exemplified by the too-often transitory nature of political freedom in countries where it does not rest upon a sufficient basis of local liberties. The management of purely local business by the localities, and of the great enterprises of industry by the union of those who voluntarily supply the pecuniary means, is further recommended by all the advantages which have been set forth in this Essay as belonging to individuality of development, and diversity of modes of action. Government operations tend to be everywhere alike. With individuals and voluntary associations, on the contrary, there are varied experiments, and endless diversity of experience. What the State can usefully do, is to make itself a central depository, and active circulator and diffuser, of the experience resulting from many trials. Its business is to enable each experimentalist to benefit by the experiments of others, instead of tolerating no experiments but its own.

The third, and most cogent reason for restricting [Pg 210] the interference of government, is the great evil of adding unnecessarily to its power. Every function superadded to those already exercised by the government, causes its influence over hopes and fears to be more widely diffused, and converts, more and more, the active and ambitious part of the public into hangers-on of the government, or of some party which aims at becoming the government. If the roads, the railways, the banks, the insurance offices, the great joint-stock companies, the universities, and the public charities, were all of them branches of the government; if, in addition, the municipal corporations and local boards, with all that now devolves on them, became departments of the central administration; if the employés of all these different enterprises were appointed and paid by the government, and looked to the government for every rise in life; not all the freedom of the press and popular constitution of the legislature would make this or any other country free otherwise than in name. And the evil would be greater, the more efficiently and scientifically the administrative machinery was constructed—the more skilful the arrangements for obtaining the best qualified hands and heads with which to work it. In England it has of late been proposed that all the members of the civil [Pg 211] service of government should be selected by competitive examination, to obtain for those employments the most intelligent and instructed persons procurable; and much has been said and written for and against this proposal. One of the arguments most insisted on by its opponents, is that the occupation of a permanent official servant of the State does not hold out sufficient prospects of emolument and importance to attract the highest talents, which will always be able to find a more inviting career in the professions, or in the service of companies and other public bodies. One would not have been surprised if this argument had been used by the friends of the proposition, as an answer to its principal difficulty. Coming from the opponents it is strange enough. What is urged as an objection is the safety-valve of the proposed system. If indeed all the high talent of the country could be drawn into the service of the government, a proposal tending to bring about that result might well inspire uneasiness. If every part of the business of society which required organised concert, or large and comprehensive views, were in the hands of the government, and if government offices were universally filled by the ablest men, all the enlarged culture and practised intelligence in the country, except the purely [Pg 212] speculative, would be concentrated in a numerous bureaucracy, to whom alone the rest of the community would look for all things: the multitude for direction and dictation in all they had to do; the able and aspiring for personal advancement. To be admitted into the ranks of this bureaucracy, and when admitted, to rise therein, would be the sole objects of ambition. Under this régime, not only is the outside public ill-qualified, for want of practical experience, to criticise or check the mode of operation of the bureaucracy, but even if the accidents of despotic or the natural working of popular institutions occasionally raise to the summit a ruler or rulers of reforming inclinations, no reform can be effected which is contrary to the interest of the bureaucracy. Such is the melancholy condition of the Russian empire, as is shown in the accounts of those who have had sufficient opportunity of observation. The Czar himself is powerless against the bureaucratic body; he can send any one of them to Siberia, but he cannot govern without them, or against their will. On every decree of his they have a tacit veto, by merely refraining from carrying it into effect. In countries of more advanced civilisation and of a more insurrectionary spirit, the public, accustomed to expect everything to be done for them by the [Pg 213] State, or at least to do nothing for themselves without asking from the State not only leave to do it, but even how it is to be done, naturally hold the State responsible for all evil which befalls them, and when the evil exceeds their amount of patience, they rise against the government and make what is called a revolution; whereupon somebody else, with or without legitimate authority from the nation, vaults into the seat, issues his orders to the bureaucracy, and everything goes on much as it did before; the bureaucracy being unchanged, and nobody else being capable of taking their place.

A very different spectacle is exhibited among a people accustomed to transact their own business. In France, a large part of the people having been engaged in military service, many of whom have held at least the rank of non-commissioned officers, there are in every popular insurrection several persons competent to take the lead, and improvise some tolerable plan of action. What the French are in military affairs, the Americans are in every kind of civil business; let them be left without a government, every body of Americans is able to improvise one, and to carry on that or any other public business with a sufficient amount of intelligence, order, and decision. This is what every [Pg 214] free people ought to be: and a people capable of this is certain to be free; it will never let itself be enslaved by any man or body of men because these are able to seize and pull the reins of the central administration. No bureaucracy can hope to make such a people as this do or undergo anything that they do not like. But where everything is done through the bureaucracy, nothing to which the bureaucracy is really adverse can be done at all. The constitution of such countries is an organisation of the experience and practical ability of the nation, into a disciplined body for the purpose of governing the rest; and the more perfect that organisation is in itself, the more successful in drawing to itself and educating for itself the persons of greatest capacity from all ranks of the community, the more complete is the bondage of all, the members of the bureaucracy included. For the governors are as much the slaves of their organisation and discipline, as the governed are of the governors. A Chinese mandarin is as much the tool and creature of a despotism as the humblest cultivator. An individual Jesuit is to the utmost degree of abasement the slave of his order, though the order itself exists for the collective power and importance of its members.

It is not, also, to be forgotten, that the absorption of all the principal ability of the country into the governing body is fatal, sooner or later, to the mental activity and progressiveness of the body itself. Banded together as they are—working a system which, like all systems, necessarily proceeds in a great measure by fixed rules—the official body are under the constant temptation of sinking into indolent routine, or, if they now and then desert that mill-horse round, of rushing into some half-examined crudity which has struck the fancy of some leading member of the corps: and the sole check to these closely allied, though seemingly opposite, tendencies, the only stimulus which can keep the ability of the body itself up to a high standard, is liability to the watchful criticism of equal ability outside the body. It is indispensable, therefore, that the means should exist, independently of the government, of forming such ability, and furnishing it with the opportunities and experience necessary for a correct judgment of great practical affairs. If we would possess permanently a skilful and efficient body of functionaries—above all, a body able to originate and willing to adopt improvements; if we would not have our bureaucracy degenerate into a pedantocracy, this body must not engross all the occupations which form [Pg 216] and cultivate the faculties required for the government of mankind.

To determine the point at which evils, so formidable to human freedom and advancement, begin, or rather at which they begin to predominate over the benefits attending the collective application of the force of society, under its recognised chiefs, for the removal of the obstacles which stand in the way of its well-being; to secure as much of the advantages of centralised power and intelligence, as can be had without turning into governmental channels too great a proportion of the general activity, is one of the most difficult and complicated questions in the art of government. It is, in a great measure, a question of detail, in which many and various considerations must be kept in view, and no absolute rule can be laid down. But I believe that the practical principle in which safety resides, the ideal to be kept in view, the standard by which to test all arrangements intended for overcoming the difficulty, may be conveyed in these words: the greatest dissemination of power consistent with efficiency; but the greatest possible centralisation of information, and diffusion of it from the centre. Thus, in municipal administration, there would be, as in the New England States, a very minute [Pg 217] division among separate officers, chosen by the localities, of all business which is not better left to the persons directly interested; but besides this, there would be, in each department of local affairs, a central superintendence, forming a branch of the general government. The organ of this superintendence would concentrate, as in a focus, the variety of information and experience derived from the conduct of that branch of public business in all the localities, from everything analogous which is done in foreign countries, and from the general principles of political science. This central organ should have a right to know all that is done, and its special duty should be that of making the knowledge acquired in one place available for others. Emancipated from the petty prejudices and narrow views of a locality by its elevated position and comprehensive sphere of observation, its advice would naturally carry much authority; but its actual power, as a permanent institution, should, I conceive, be limited to compelling the local officers to obey the laws laid down for their guidance. In all things not provided for by general rules, those officers should be left to their own judgment, under responsibility to their constituents. For the violation of rules, they should be responsible to law, and the rules [Pg 218] themselves should be laid down by the legislature; the central administrative authority only watching over their execution, and if they were not properly carried into effect, appealing, according to the nature of the case, to the tribunal to enforce the law, or to the constituencies to dismiss the functionaries who had not executed it according to its spirit. Such, in its general conception, is the central superintendence which the Poor Law Board is intended to exercise over the administrators of the Poor Rate throughout the country. Whatever powers the Board exercises beyond this limit, were right and necessary in that peculiar case, for the cure of rooted habits of maladministration in matters deeply affecting not the localities merely, but the whole community; since no locality has a moral right to make itself by mismanagement a nest of pauperism, necessarily overflowing into other localities, and impairing the moral and physical condition of the whole labouring community. The powers of administrative coercion and subordinate legislation possessed by the Poor Law Board (but which, owing to the state of opinion on the subject, are very scantily exercised by them), though perfectly justifiable in a case of first-rate national interest, would be wholly out of place in the superintendence [Pg 219] of interests purely local. But a central organ of information and instruction for all the localities, would be equally valuable in all departments of administration. A government cannot have too much of the kind of activity which does not impede, but aids and stimulates, individual exertion and development. The mischief begins when, instead of calling forth the activity and powers of individuals and bodies, it substitutes its own activity for theirs; when, instead of informing, advising, and, upon occasion, denouncing, it makes them work in fetters, or bids them stand aside and does their work instead of them. The worth of a State, in the long run, is the worth of the individuals composing it; and a State which postpones the interests of their mental expansion and elevation, to a little more of administrative skill, or of that semblance of it which practice gives, in the details of business; a State which dwarfs its men, in order that they may be more docile instruments in its hands even for beneficial purposes, will find that with small men no great thing can really be accomplished; and that the perfection of machinery to which it has sacrificed everything, will in the end avail it nothing, for want of the vital power which, in order that the machine might work more smoothly, it has preferred to banish.

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On Liberty, Utilitarianism and Other Essays (2 ed.)

John stuart mill , mark philp , and frederick rosen.

‘it is only the cultivation of individuality which produces, or can produce, well developed human beings’ Mill's four essays, 'On Liberty', 'Utilitarianism', 'Considerations on Representative Government', and 'The Subjection of Women' examine the most central issues that face liberal democratic regimes - whether in the nineteenth century or the twenty-first. They have formed the basis for many of the political institutions of the West since the late nineteenth century, tackling as they do the appropriate grounds for protecting individual liberty, the basic principles of ethics, the benefits and the costs of representative institutions, and the central importance of gender equality in society. These essays are central to the liberal tradition, but their interpretation and how we should understand their connection with each other are both contentious. In their introduction Mark Philp and Frederick Rosen set the essays in the context of Mill's other works, and argue that his conviction in the importance of the development of human character in its full diversity provides the core to his liberalism and to any defensible account of the value of liberalism to the modern world. ABOUT THE SERIES: For over 100 years Oxford World's Classics has made available the widest range of literature from around the globe. Each affordable volume reflects Oxford's commitment to scholarship, providing the most accurate text plus a wealth of other valuable features, including expert introductions by leading authorities, helpful notes to clarify the text, up-to-date bibliographies for further study, and much more.

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John Stuart Mill, author

Mark Philp, editor

Frederick Rosen, editor

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Acknowledgements
Introduction
Note on the Text
Select Bibliography
A Chronology Of John Stuart Mill
I Introductory John Stuart Mill
II Of the Liberty of Thought and Discussion John Stuart Mill
III Of individuality, as One of the Elements of Well-Being John Stuart Mill
IV Of the Limits to the Authority of Society over the Individual John Stuart Mill
V Applications John Stuart Mill
I General Remarks John Stuart Mill
II What Utilitarianism is John Stuart Mill
III Of the Ultimate Sanction of the Principle of Utility John Stuart Mill
IV Of What Sort of Proof the Principle of Utility is Susceptible John Stuart Mill
V On the Connection between Justice and Utility John Stuart Mill
Preface John Stuart Mill
I To What Extent Forms of Government are a Matter of Choice John Stuart Mill
II The Criterion of a Good Form of Government John Stuart Mill
III That the Ideally Best Form of Government is Representative Government John Stuart Mill
IV Under What Social Conditions Representative Government is Inapplicable John Stuart Mill
V Of the Proper Functions of Representative Bodies John Stuart Mill
VI Of the Infirmities and Dangers to Which Representative Government is Liable John Stuart Mill
VII Of True and False Democracy; Representation of All, and Representation of the Majority Only John Stuart Mill
VIII Of the Extension of the Suffrage John Stuart Mill
IX Should there be Two Stages of Election? John Stuart Mill
X Of the Mode of Voting John Stuart Mill
XI Of the Duration of Parliaments John Stuart Mill
XII Ought Pledges to be Required from Members of Parliament? John Stuart Mill
XIII Of a Second Chamber John Stuart Mill
XIV Of the Executive in a Representative Government John Stuart Mill
XV Of Local Representative Bodies John Stuart Mill
XVI Of Nationality, as Connected with Representative Government John Stuart Mill
XVII Of Federal Representative Governments John Stuart Mill
XVIII Of the Government of Dependencies by a Free State John Stuart Mill
I John Stuart Mill
II John Stuart Mill
III John Stuart Mill
IV John Stuart Mill
Explanatory Notes
Oxford University Press

date: 05 June 2024

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Chapter 1: Our Rights in American History

Rights are expressions of individual liberty. The history of America is, on the whole, a story of individual liberty and rights. In 1776, the signers of the Declaration of Independence boldly proclaimed their belief in the right of equality—“all men are created equal”—and in the inalienable rights of life, liberty, and the pursuit of happiness. The founding generation considered individual rights so critical to freedom that only a promise to add them to the new Constitution ensured ratification of the nation’s fundamental law. Almost ninety years later, as the Civil War threatened the nation’s existence, President Abraham Lincoln used the same language of rights and liberty to remind his fellow citizens about the importance of their campaign to save the Union. So has every President in every war called upon Americans to defend what we all identify as our heritage of freedom and the rights that protect it. Even when we disagree most with each other about what course the nation should take, we often express our choices in the language of rights.

We usually associate our rights with the Bill of Rights, the first ten amendments to the Constitution. It is our touchstone to what the revolutionary generation defined as a “great experiment in liberty.” But its guarantees were, in many ways, a listing of rights the framers considered to be their own inheritance from countless generations that preceded them. Now, we judge the Bill of Rights to be our gift from the past. Only when we look carefully do we recognize how this legacy of rights has changed in response to new conditions. Our rights, like our understanding of liberty, are not static. They are dynamic expressions of freedom. What is most constant in the history of individual rights is how each successive generation has contributed to defining the liberties we claim today.

When English settlers migrated to the New World, they came with a royal guarantee that they would continue to have the “rights and privileges of Englishmen.” The pledge was important. It promised continued ownership of a long tradition of English liberty that was thought to stretch at least to the Magna Carta (or Great Charter) in 1215, when English noblemen forced King John to abide by the “law of the land,” or as it was known later, “due process of law.”

There is something back of the [Constitution and the Union], entwining itself. . . closely about the human heart. That something, is the principle of ‘Liberty to all’—the principle that clears the path for all—gives hope to all—and, by consequence, enterprise, and industry to all.

Embodied in these phrases were two core contributions to the English understanding of rights: the idea of fairness and the concept that no one, not even the king, was above the law. Although the document applied only to the king and barons, the most powerful class in English society, over time its guarantee of rights became understood as a commitment to all English citizens.

Much of the early history of rights centered on protections for property and for individuals accused of crimes, because in these areas the state most often exercised arbitrary power. Rights of the accused offer the clearest example of what Englishmen understood to be their heritage. By the time the earliest North American colonies were established, numerous guarantees already existed to ensure a fair criminal trial for Englishmen. The Massachusetts Puritans included many of these protections in their first law code, the Body of Liberties, in 1641: the promise of speedy trial and equal justice, protection against being tried twice for the same crime (double jeopardy), and the prohibition of torture, among others. The long seventeenth-century struggle between king and Parliament for supremacy further limited the power of government and added to the rights of Englishmen, including the right of petition, a limited form of freedom of speech, a right to release the accused from detention upon a guarantee to appear at trial (bail), and prohibition against excessive fines. The Bill of Rights of 1689, which Parliament adopted after ousting King James II in the Glorious Revolution, put these rights in written form. Unlike the Magna Carta, it extended them to the English population as a whole, including the colonists.

Much of what the English settlers to the New World considered to be rights was found in the common law, the case law of English courts, not in statutes or state documents. Common law contained what had become customary practice in English society. As with the Magna Carta, it emphasized rights of the accused: the promise of a speedy and public trial by jury; prohibition of ex post facto laws, or laws that criminalized behavior after it had occurred; and the guarantee of habeas corpus, a procedure that required government to bring a person under detention before a court to determine if legal reason existed to hold him. Common law also offered some protection for the rights of widows and children, the right of compensation for the taking of private property, and the openness of courts to all citizens. Not only did colonial assemblies and courts adopt common law, but colonists looked as well to English law books for further instruction on their rights and privileges.

The colonists were not satisfied with reliance on their charters alone because they could be changed too easily. Early on, they put their liberties into writing as a way to prevent imperial encroachment. The Massachusetts Body of Liberties in 1641 summarized these rights and added a few additional safeguards; it was, in effect, the first bill of rights in American history. The Pennsylvania Charter of Liberties and Frame of Government, both written in 1682, also protected the rights of colonists from government interference, as did the New York Charter of Liberties and Privileges enacted the following year. Most colonies adopted this practice of converting customary rights and privileges into written protections, and they often extended these liberties beyond those claimed by their cousins in the mother country.

By the eve of the Revolution, these safeguards had become part of a shared language about liberty that guided colonial resistance to British attempts to tighten control over the empire. But it would be a mistake to draw a direct line of descent from the colonial understanding of rights to our understanding today. The words are similar but not their substance. Due process of law, for example, held a sharply different meaning in the seventeenth and eighteenth centuries than it does in the twenty-first. Then, it referred to a fair process only; now it also means a fair result. Personal rights were important, but the good order of society took precedence over individual liberty. Still, the colonial contribution to modern ideas about rights was significant, not as much as a list of rights but as a set of attitudes about individual liberty. The colonists by necessity had adapted English laws and customs to a new world and, in the process, claimed full ownership in the great tradition of English liberty. But they went further than mere imitation. They had simplified the law and made it accessible in written form to all settlers. They had been willing to reform the law and had added rights not recognized in the British Isles. Their biggest contribution, however, was an acceptance of legal change and a willingness to mold law to social needs and circumstances. This flexibility became a trait that defined American society and allowed the ancient maxim of due process to become as expansive as the continent itself.

Colonists entered the struggle for independence with a view that individual rights restrained the exercise of arbitrary power, especially by the central government; by restraining power, rights protected liberty. Three rights were especially important to the colonial understanding of liberty: trial by jury, the right to property, and due process of law. Representative government also was significant. These rights and this form of government above all protected local communities from tyranny exercised by a government far removed from them. The colonial view of liberty, after all, centered on the community first. The belief that rights belonged to individuals was the product of a later age.

In seeking greater control over the colonies, Great Britain threatened the local autonomy that all English colonists had come to consider their birthright. The list of grievances that poured from colonial pens from 1763 to 1776—and captured in a long litany in the Declaration of Independence—reveals how valuable the colonists considered self-government and how closely it was tied to their notion of rights. Taxation without representation was an interference with their right to property. Trials of alleged smugglers, such as Boston merchant John Hancock, by a judge alone violated the right to a public jury trial by members of the local community. Suspension of local courts denied due process of law.

Grievances are rights in reverse—they identify rights under threat—and by this measure the Declaration of Independence is an important gauge of what the colonists believed was at stake. British actions, the document charged, robbed Englishmen of their heritage. Each action of the imperial government mocked an essential ingredient of English liberty; collectively, they proved an intention to deprive the colonists of their freedom. “We are obliged,” the people of Newburyport, Rhode Island, petitioned Parliament, “to submit to a Jurisdiction. . . where the Common Law, the collected wisdom of the British Nation for Ages, is not admitted.” Other revolutionaries were more blunt. In A Summary View of the Rights of British America (1774), Thomas Jefferson alleged that the British were pursuing nothing less, than a “deliberate, systematic plan of reducing us to slavery,” a condition that left individuals with no rights and no freedom. The colonists declared independence to save their liberty and the rights that made it possible, but in the process they became revolutionaries intent on creating what they called “a new order for the ages.” The founding generation set out not only to build a new frame of government, but also to identify what rights were necessary to protect liberty. Their search led them to a different understanding of the nature of government itself. They focused on republicanism, a form of government that rested clearly on the consent of the governed and thus, by definition, exercised limited power. They discovered rights not in English history alone but in the laws of nature, or natural law. These rights went beyond the common law, and because they existed before societies were formed, they belonged to individuals, not communities.

New state constitutions and later, the federal Bill of Rights, contained more expansive safeguards of liberty than had been listed in colonial protests. The founding generation also put these rights in writing and gave them the force of fundamental law, protections that could not be changed easily. The most important model was the Virginia Declaration of Rights in 1776. Written by George Mason, the declaration contained sixteen articles, with seven enumerating the rights of citizens, including the right of religious belief. Other states followed suit, usually listing the rights as part of the state constitutions. At first, revolutionary legislatures did not seek popular ratification of their actions, which raised questions about whether or not the constitutions restrained the legislatures themselves. In 1780, however, Massachusetts submitted its new constitution for voter approval, thus placing rights beyond the reach of legislative majorities. All other states soon adopted this innovation, as did the new federal constitution in 1787. Rights now existed as fundamental law.

The importance of this development became clear during and after the Constitutional Convention, which met in Philadelphia in 1787 to replace the inadequate Articles of Confederation, the nation’s first constitution. The fifty-five delegates faced a critical problem: how to grant government enough power to do its job without also giving it the power to threaten liberty? Their answer revealed how far the revolutionaries had advanced in their understanding of the relationship between power and liberty. First, they based all power or sovereignty (the right to rule) in the people, not the government, an idea known as popular sovereignty. Government had only the authority granted to it in a written constitution ratified by the people. To restrain government even more, the framers divided power in two fundamental ways. They created three separate and coequal branches of government—legislative, executive, and judicial—and required the cooperation of each to exercise power fully. Then they divided power further between the states and the national government. This principle, federalism, entrusted the central government, the one they feared most, with only the power necessary to serve truly national functions, such as defense and regulation of commerce between the states. The powers not granted to the central government, including the critical authority to define and prosecute crimes, would remain with the states, which by definition were closer to the people.

The delegates believed that these restrictions on government—popular sovereignty, a written constitution, separation and balance of powers, and federalism—would be sufficient protection for the rights of individuals. The Constitution contained no bill of rights, but it did not need one, its advocates reasoned, because the new government could not exercise any power not granted to it explicitly. But when the Federalists, or supporters of the Constitution, submitted it to state conventions for ratification, they learned that a large number of voters were not convinced by this argument. Thomas Jefferson, for example, believed the absence of a bill of rights was a serious defect. A listing of rights, he explained, “is what the people are entitled to against every government on earth.” The absence of a declaration of rights, Anti-Federalists protested, made the Constitution unacceptable because it was in the nature of government, especially central government, to infringe on the rights of the people. It soon became apparent that ratification would not occur without a promise to address his deficiency. Led by James Madison, the Federalists pledged to amend the Constitution to include clear safeguards for individual liberty.

As a newly elected member of the House of Representatives, Madison submitted nine amendments to the first Congress in 1788. The proposals borrowed heavily from the Virginia Declaration of Rights and the various state bills of rights. Madison listed two types of guarantees: rights necessary for representative government, such as freedom of speech, press, and peaceable assembly, and rights of the accused, including protections against double jeopardy and self-incrimination as well as the right to trial by jury. In all, his proposals covered twenty-six paragraphs. Over the next month, these safeguards were molded into twelve amendments; by 1791, the states had ratified ten of them. These ten became known as the Bill of Rights.

During the debates over the ratification of the Constitution, Madison at first had resisted a declaration of rights because he feared it would be only a “parchment barrier,” a mere paper incapable of protecting liberty. He came to believe instead that written constitutional guarantees were necessary because they would remind people of “the fundamental maxims of free government,” especially the close link between individual rights and personal liberty. They would serve as “good ground for an appeal to the sense of community,” he concluded, if states or oppressive majorities threatened liberty. He worried much about majorities running roughshod over the rights of minorities, especially in matters of conscience, and he feared states would not be able to resist this kind of tyranny. In fact, Madison initially had proposed that the Bill of Rights apply to the states as well as the central government, a result not achieved, even in part, until the twentieth century. Who would enforce the Bill of Rights on behalf of individuals whose rights were threatened? Here, Madison believed the answer was more certain. An independent judiciary, operating through courts open to all citizens, would come to consider themselves “the guardian of these rights,” he argued. They would “resist every encroachment on rights expressly stipulated for in the constitution,” forming an “impenetrable bulwark against every assumption of power in the legislative or executive.”

Madison’s views are instructive for understanding our rights under the Constitution. Although most of his contemporaries viewed the Bill of Rights as a standard that enabled people to judge their government, Madison believed it promoted self-government by enabling citizens to resist any impulse—fear, selfishness, and prejudice, among others—that threatened America’s great experiment in liberty. Enforcement of rights by an independent judiciary, he argued, provided a means to correct injustices that were sure to occur in any human society but which could not be allowed to exist in a society dedicated to liberty. The federal Bill of Rights resulted from a rich mix of English history, colonial experience, and revolutionary ideas. It was the product of a society far different from our own, and no one at the time seriously believed that its protections benefited American Indians, African Americans, or even white women. But for all the flaws of its creators, the list of rights was far advanced for its time. The legacy of liberty the Bill of Rights gave to the new nation became the envy of the rest of the world. Since 1791 we have been debating exactly what this legacy means.

Almost from the moment of their passage, the rights promised in the new constitutional amendments came under dispute. The desire to safeguard individual liberty did not disappear—if anything, it became stronger—but when faced with practical problems, people disagreed about what government could and could not do. The 1790s, for example, witnessed a ferocious debate between Secretary of the Treasury Alexander Hamilton and Secretary of State Thomas Jefferson about the power of the central government. The debate became intensely partisan, and when it appeared to threaten national security, Congress passed a law, the Sedition Act of 1798, forbidding anyone to criticize the government or government officials. Although the law expired three years later, it was clear that the founding generation had sharp differences of opinion about what freedom of speech or freedom of the press meant in practice.

On the whole, however, the concern for rights became more intense in the decades following the Revolution, although the focus shifted from the federal to the state governments. The United States was becoming more democratic, with most states removing property qualifications for voting and office holding by the 1820s to allow all adult white males to participate in government. The nation had also embraced capitalism, which emphasized individual risk and reward. Both developments reinforced the notion of individual rights, especially property rights, and they strengthened as well a demand for fair procedure, or due process, to ensure equal opportunity in the political arena and the marketplace.

Ensuring these protections of liberty was primarily the responsibility of the states. In 1833, the U.S. Supreme Court ruled, in Barron v. Baltimore , that the Bill of Rights restrained the federal government alone. Most individual rights, then, were protected by state constitutions and state judiciaries. In some ways, this decision had a limited effect because almost every state constitution included the set of rights contained in the federal amendments, and some exceeded the federal safeguards. But the decision also meant that the interpretation and enforcement of rights could vary widely from state to state.

Rights of the accused occupied much of the nineteenth-century attention to individual liberty. No other part of the law had a more intimate relationship to everyday life than did criminal justice. Judges at first interpreted their state constitutions to offer significant protections to anyone accused of crimes. They insisted on following procedure strictly, such as requiring that indictments, or formal accusations of crime, use precisely the words required by law. The goal of such precision was twofold: the defendant needed to have exact knowledge to prepare his defense, and the indictment’s precise language ensured that the state could not use the alleged facts to support a second trial for the same offense. Judges resisted any pressure to loosen these safeguards. “The harmless decision of today becomes the dangerous precedent for tomorrow,” an Indiana court warned. The regard for proper procedure was no “idle technicality”; “the people have no better security than in holding officers of the state to a reasonable degree of care, precision, and certainty in prosecuting the citizen for a violation of the law.”

An insistence on strict adherence to procedure diminished by the mid-nineteenth century, as fear of crime increased in tandem with the growth of cities. Public demands for order and security had profound implications for rights of the accused. By the end of the century, states were, in effect, running as many as three different criminal systems, each with its own standard of due process, as illustrated by Alameda County, California, home to Oakland. At the bottom was assembly-line justice. It was a highly bureaucratic process that used plea bargains—negotiated sentences in exchange for a plea of guilty—to move people accused of minor crimes swiftly from arrest to imprisonment. The handling of ordinary but serious property crimes was only marginally less routine, with fewer than half the cases going to trial and the vast majority of defendants being found guilty. Only for the most serious crimes—murder and robbery chief among them—did rights of the accused play any part in the criminal process. These cases grabbed public attention, and the duel of lawyers acted to educate citizens on an idealized version of American justice and the rights of defendants. Of course, for immigrants and blacks even the most routine administration of due process was often a mirage, a constitutional pledge they could not redeem.

Still, the promise of individual rights maintained a powerful hold on Americans. The nineteenth century witnessed numerous reform movements designed to extend the Bill of Rights and other democratic safeguards of liberty, some of them newly invented, to excluded groups. Women made one of the strongest demands, and at the Seneca Falls Convention in New York State in 1848, they put their case for voting rights and property rights in a Declaration of Sentiments, Grievances, and Resolutions that borrowed language from the Declaration of Independence. Workingmen used Jefferson’s term, “inalienable rights,” to lobby for fair wages and the ability to use their free time as they saw fit, which they wanted to include in the list of individual rights. Both of these movements succeeded after decades of struggle, but it was another nineteenth-century campaign that had the most profound effect on our rights as we know them today. This movement sought the abolition of slavery.

Union victory in the Civil War effectively ended slavery and led to three new amendments, each adding new rights, and one, the Fourteenth Amendment, containing within it the seeds of a veritable revolution in our conception of rights. The fruit of the Thirteenth Amendment was the right to freedom through the abolition of slavery; the Fifteenth Amendment guaranteed the right to vote to the freedmen. But it was the Fourteenth Amendment that changed the traditional relationship of national and state governments. Previously, Americans were citizens of their states; they looked primarily to their state constitutions for protection of their rights. The Fourteenth Amendment established national standards for citizenship and made every person born in the United States both a citizen of his state and a citizen of the nation. Equally important, it declared that “equal protection of the laws” and “due process of law” were guarantees for all citizens.

For the first time, the federal government had the responsibility to protect the rights of citizens—at least in theory. On the whole, however, federal courts did not interpret the amendment in this fashion during the last half of the nineteenth century, in part because the framers of the amendments did not define what they meant by such general phrases as “due process of law.” Contrary to the expectations of the framers, the Supreme Court held that the amendment did not require states and local governments to respect the guarantees of the Bill of Rights. The justices instead followed traditional practice and allowed states wide discretion to protect individual liberty as they saw fit. For example, in Plessy v. Ferguson (1896), the Court held that state-mandated racial segregation of railroad cars did not violate the equal protection clause of the Fourteenth Amendment. The doctrine, known as “separate but equal,” justified the widespread racial segregation and discrimination that finally ended as a matter of law in the 1960s. The Plessy decision, although repugnant to us today, reflected a much different view of rights and the role of states than we hold in modern America. It implied that the right to associate was a social right, subject to regulation by democratic majorities though legislative acts. Separating the races by law did not deny individuals their political rights, or so many people believed. Now we understand that racial discrimination prevents the enjoyment of other rights, such as equal protection of the laws. This view, however, became accepted only in the twentieth century.

The Fourteenth Amendment initially became a bulwark not for the civil rights of individuals but for the property rights of monopolistic corporations. From the late nineteenth century through the first three decades of the twentieth, big business dominated the American economy as never before. The U.S. Supreme Court proved to be its strong ally, first by declaring in 1886 that a corporation was a person for purposes of the Fourteenth Amendment and then by reading the amendment as protecting freedom of contract, but not other individual rights, such as freedom of speech, from government interference. In effect, this stance prevented most state and federal regulation of economic activity in the name of protecting individual liberty.

The late nineteenth and early twentieth centuries witnessed reform movements to reconcile the promise of American life with its harsher realities. The rapid growth of industry, emergence of a national market, the closing of the frontier, and rise of big cities following the Civil War had changed forever the earlier vision of a republic of small farmers and independent shopkeepers. These developments created great national wealth and moved the United States from a third-class nation to a world power, but they also brought many social ills, from child labor to massive urban poverty. In response, reformers lobbied against the prevailing notion that property rights limited the government’s power to regulate the marketplace; they argued instead for an expanded view of governmental power sufficient to ensure fair competition and equal justice.

They were aided in these efforts by a new way of thinking about law and the role of judges. In a series of lectures in 1881, Justice Oliver Wendell Holmes, Jr., suggested that “the life of the law is not logic but experience.” By this, he meant that social and economic change influenced the way we interpret the law; reaching the right decision in a case was not simply a matter of reasoning from abstract principles but also recognizing how to apply the law to changing circumstances. Advocates of “legal realism” argued that judges had to look beyond legal rules, including precedent (how previous judges had interpreted the law), to understand how the law would work in the world outside the courtroom. Legal realism also assumed that courts had a responsibility to keep law abreast of the times. This new understanding of law and courts was instrumental in the move to strengthen protection for individual rights in the twentieth century.

The first step was to challenge the traditional view that individual property rights were sacred. The Supreme Court had adopted an exalted view of the marketplace, seeing it as the ideal arrangement for securing the utmost economic liberty. The prevailing notion was that, without any interference or aid from government, individuals freely bargained with each other in an unregulated, open market. They sold their labor to the highest bidder, accumulated and exchanged their property as they wished, and used their talents and energies to create wealth for themselves and their families. The result of this unrestrained competition benefited the nation, as when railroad builders risked bankruptcy to develop a transportation network that was the envy of the world. This view, of course, was fantasy. Ordinary shop owners in no way competed equally with millionaire industrialists; common laborers had no ability to set their own wages; poor people had no money to invest in a business. It was an idealized picture of an economy that, in fact, valued monopoly over competition and in which government routinely devoted public assets to private gain, as when it gave land to railroad magnates. But the Court based its ideas of economic liberty on theory more than reality, so its decisions were hostile to any attempt to regulate the outcome of private economic arrangements. One decision, since discredited, even discovered in the due process clause a “liberty of contract” that protected corporations from state laws, even though the Constitution never mentions such a right.

Of the freedom of thought and speech. . . one may say that it is the matrix, the indispensable condition, of nearly every other form of freedom.

What had happened was a change in the meaning of due process. Initially, the term meant only that government had to follow its own laws or procedures when making decisions or taking actions. If it did, then the result was thought to be fair. The new interpretation of due process looked instead to the result of the decision-making process: was it fair, and if not, who decided the right result— legislatures or judges? The answer under the new view was that government could follow all its established procedures and still deprive citizens (or corporations) of their rights because the result of the decision-making process was unfair. Judges would decide when this occurred. The idea that due process meant an acceptable result and not simply a fair process was called substantive due process. It represented a shift in interpretation that came to a head when states sought to regulate the monopolistic practices of corporations, for example, by establishing the rates railroads could charge. The Supreme Court usually struck down these laws because, even if the state followed its procedures to the letter, the result of the regulation was an infringement on the corporation’s property rights. Regulation had resulted in a loss of freedom by the corporation to set its rates at whatever price the market would bear. Significantly, the Court did not apply this same logic to individual rights, which remained under state protection—or, too often, as in the case of racial minorities, were not protected at all.

Ultimately, this stance disappeared when monopolistic practices and market excesses resulted in the economic collapse known as the Great Depression of the 1930s. After initial resistance to economic reforms, the Court retreated from its belief in the supremacy of economic rights and accepted government regulation of property as a reasonable exercise of congressional power to regulate interstate commerce. But the justices’ attempt to shield property rights from state regulation under the due process clause of the Fourteenth Amendment suggested that individual rights might be protected in similar fashion. Were the guarantees of free speech, fair trial, rights to counsel, and other safeguards of the Bill of Rights included in the meaning of the Fourteenth Amendment’s due process and equal protection clauses?

The aftermath of World War I presented an opportunity to test this idea. Free speech was at issue. After the United States entered the war, the federal government sought to suppress dissent as harmful to the war effort. Much of the concern focused on attempts by union organizers, many of them self-proclaimed communists, to use wartime labor shortages to force concessions from business, even if it harmed military production. State courts had long refused to protect radical or offensive speech, and they also suppressed speech if it was accompanied by action that threatened public order, such as might occur at a union rally. At first, the Supreme Court followed this line of reasoning: it upheld convictions under state laws of antiwar protesters, including a candidate for U.S. President ( Debs v. United States , 1919), because their speech presented “a clear and present danger” to the war effort. The First Amendment right of free speech did not protect individuals from state laws designed to ensure public order. By 1925, however, the Court had changed its mind, not about the meaning of free speech but about the role of the First Amendment. It ruled for the first time, in Gitlow v. New York (1925), that the freedoms of speech and press “are among the fundamental personal rights protected by the due process clause of the Fourteenth Amendment from impairment by the states.” It would be several years before the full impact of this decision became apparent, but it marked the beginning of a new era for individual rights.

By the late 1930s, the Court was marching under the banner of incorporation for First Amendment freedoms. In 1937, the justices rejected an argument that the Fourteenth Amendment’s due process clause incorporated, or included, the Fifth Amendment’s ban on double jeopardy, but Justice Benjamin Cardozo, writing for the majority, ruled that it did incorporate all the provisions of the First Amendment. These rights—speech, press, religion, and assembly—were freedoms of expression, which Cardozo called “the matrix, the indispensable condition” for nearly all other freedoms. Other rights, however, were subject to selective incorporation, or inclusion one by one in the meaning of due process: the Court would apply only those rights that are, in Cardozo’s words, “of the very essence of a scheme of ordered liberty” and could be considered fundamental because they were so deeply rooted in American traditions.

This standard meant the Court would consider individual rights on a case-by-case basis. It was a position that divided the justices; some argued that all of the Bill of Rights applied to the states under the Fourteenth Amendment, a view known as total incorporation.

The debate over selective versus total incorporation had barely begun when successive international crises, World War II and the Cold War, plunged the Court once more into a debate about how to reconcile liberty and security. It was a problem as old as the Constitution itself, and it centered on how far individual rights extended in times of threat. The first cases to test the limits came from an unlikely source, Jehovah’s Witnesses, a religious group that claimed First Amendment protection for their children’s refusal to salute the flag in school, as required by state laws. The law infringed upon their right to the free exercise of their religious beliefs, they argued, since they owed allegiance only to God. Initially, the justices deferred to legislative judgments: the need to encourage patriotism, they concluded, was sufficiently important to justify a minor infringement of religious belief. But when accounts of public attacks on the Witnesses reached Court chambers, several justices reversed course and held in 1943 that the First Amendment protected freedom of religion from state interference.

Generally, the fascist assault on liberty during World War II, as seen in Nazi Germany, renewed American belief in the necessity of individual rights. President Franklin Roosevelt used his fireside radio chats to remind the nation of the need to protect “essential human freedoms.” He called for a “second Bill of Rights” to include new guarantees, such as the right to a home, adequate medical care, and old age insurance, among others. But this expansive talk was not always consistent with rights in action. With the Japanese attack on Pearl Harbor, the federal government ordered the relocation of Japanese Americans into internment camps. Scholars today agree that the executive order violated the equal protection clause of the Fourteenth Amendment; it treated one group of citizens differently based solely on their ethnicity. But in 1943, the U.S. Supreme Court decided otherwise. It was not willing to challenge the President’s order that internment was necessary in time of war, even when the government could produce no evidence of a real threat. In times of crisis, concerns about national security trumped individual rights, at least for certain groups of Americans.

The Cold War, the struggle between democracy and communism, as embodied by the United States and the Soviet Union, also raised challenges to individual rights, especially First Amendment freedoms of speech and association. The exposure of domestic spy rings and the communist takeover of Eastern Europe and China persuaded national and state governments to launch massive loyalty programs to purge communist sympathizers. At first, the Supreme Court supported convictions under laws designed to punish anyone who belonged to an organization that merely advocated the overthrow of the government. These decisions represented a setback in protection for individual rights because they punished beliefs, not actions, which departed from the Court’s movement toward a broader view of First Amendment freedoms. Once public hysteria subsided in the mid-1950s, however, the justices reverted once again to a more liberal interpretation of these safeguards. They operated under the increasingly accepted view that the due process and equal protection clauses of the Fourteenth Amendment applied to the states as well as the federal government.What remained to be decided were what liberties these clauses included under their protection.

In the 1950s, the Court began a dramatic expansion of individual rights that lasted through the 1960s, and its decisions created a rights consciousness that remains strong today. In some ways, the new attention to rights was simply a continuation of a prominent theme in American history. Each decade since the nation’s founding had brought some new assertion of rights—a right to freedom, woman’s right to vote, a right to organize. Some of the claims resulted in fundamental law: both the right to freedom and woman suffrage were products of constitutional amendments. Other rights, such as the right to organize, were recognized by statute. What was different in mid-century was the leadership of the Supreme Court in applying the Bill of Rights creatively to new situations.

One explanation for the Court’s newfound aggressiveness was the appointment of Earl Warren as chief justice. Warren was a former California district prosecutor, attorney general, and governor who became chief justice in 1953. His tenure signaled a shift in judicial style from restraint to activism. He rejected the belief that judges should make decisions based on narrow case facts rather than broad constitutional principles. He specifically dismissed as “fantasy” the notion that justices should be impartial. “As a defender of the Constitution,” he wrote in his memoirs, “the Court cannot be neutral.” He sought a broad and active role for the high bench: the “Court sits to decide cases, not to avoid decision.” More important, Warren believed the Constitution contained moral truths that were essential to enlightened government. It was the Court’s duty to apply these principles, even if it overturned laws favored by a large majority of citizens. The Court’s role, he believed, was to champion individual liberty, especially for people without a meaningful political voice.

Nowhere was this judicial philosophy more evident than in his attitude toward the Bill of Rights. It codified the “sense of justice” humans were born with and provided the basis for bringing American law “more and more into harmony with moral principles.” These views required the “constant and creative application” of the Bill of Rights to new situations. “The pursuit of justice,” Warren said in a Fortune magazine article in 1955, “is not the vain pursuit of remote abstraction.” It was an active search for a fundamental moral guide to the problems of daily life, led by an independent judiciary. This process suggested continual revision of the catalog of rights, leaving “a document that will not have exactly the same meaning it had when we received it from our fathers” but one that would be better because it was “burnished by growing use.”

Other justices were ready to embrace Warren’s judicial philosophy, and the emerging civil rights movement provided a ripe test bed for their new activist stance. African Americans protested the nation’s continuing segregation and its failure to live up to the promise of equality contained in the Thirteenth, Fourteenth, and Fifteenth Amendments. The Court had taken hesitant steps toward enforcing equal protection of the laws against actions of state governments in the 1930s and 1940s, especially in cases of extreme and overt use of government power in support of racial discrimination, but it was the Warren Court’s willingness to address segregation in public schools that advanced the cause of equal rights most dramatically. In Brown v. Board of Education (1954), the Court rejected the Plessy doctrine of “separate but equal” and mandated an end to educational segregation “with all deliberate speed.” The Brown decision marked a victory for legal realism—the Court considered sociological evidence of the harmful effects of segregation on black children—and it effectively ended the Court’s tendency to accept legislative judgments on such issues. Over the next decade, the justices gave new life to the equal protection clause as a means of protecting the rights of African Americans and, later, the rights of women. Despite strong resistance from southern states, the nation was ready to follow the Court’s lead, as evidenced by congressional passage of new civil rights acts in 1964, 1965, and 1968, all designed to erase racial discrimination from American life.

Acting with unprecedented boldness, the majority of justices on the Warren Court promoted a new understanding of individual rights, one that restrained the abuse of governmental power and, in their view, promoted a just society. The reforms came so swiftly that many commentators labeled them as revolutionary—and in a sense, they were. What had changed was the willingness to broaden individual rights aggressively in areas where traditionally legislatures had set standards. There were sweeping reforms of the electoral process, political representation, school desegregation, government support of religion, obscenity, and free speech, among others, all based on new interpretations of constitutional rights. New rights were inferred—invented, critics complained— from the Constitution’s language, and chief among these implied rights was the right to privacy.

Rights of the accused were also fertile ground for the expansion of individual liberties, and they were by far the most controversial actions of the Warren Court. Between 1961 and 1969, the Court accomplished what previous courts had stoutly resisted: it applied virtually all the procedural guarantees of the Bill of Rights to the states’ administration of criminal justice. Adopting the strategy of selective incorporation, the justices explicitly defined the Fourteenth Amendment phrase “due process of law” to include most of the rights outlined in the Fourth, Fifth, and Sixth Amendments. The result was a national standard that governed all criminal proceedings at both federal and state levels. The justices even extended these rights beyond the courtroom to the nation’s police stations and jailhouses, places previously thought to be subject to local control only. The Court claimed not to diminish states’ rights but instead to elevate inadequate state practices to a higher national standard. In the process, however, it ignited a firestorm of criticism that the expansion of these rights favored criminals at the expense of public safety.

By the late 1960s, the remarkable expansion of individual rights was nearing an end. Americans were increasingly uneasy about the course of reform charted by the Warren Court. Critics complained that the rights of individuals had taken precedence over the order and security of society. The decade’s turbulent history appeared to support this conclusion: urban riots, political violence, and increased crime were cited as evidence. Conservatives also charged that judges had upset the constitutional balance by making law, which was a legislative function, and that, in turn, subverted democracy. The Warren Court record became a major issue in the 1968 Presidential election. The winning candidate, Richard Nixon, promised to appoint law-and-order judges who would interpret the Constitution strictly, as he believed the founders intended, and halt, if not reverse, the trend toward greater liberalization of individual rights. Subsequent elections also featured this theme, with Ronald Reagan making a similar pledge to stop the creation of “judge-made rights.”

Two successive chief justices, Warren Burger and William Rehnquist, both appointees of conservative Republican Presidents, held similar views, but the Courts they led during the last three decades of the twentieth century left much of the Warren Court’s legacy in place. The justices did not abandon the newfound catalog of individual rights but focused instead on what these rights meant in practice. On occasion, their decisions brought the same public opposition that had greeted the more controversial cases from the 1960s, as in Texas v. Johnson (1989), when the justices upheld flag burning as protected speech under the First Amendment. In some instances, the Court reaffirmed explicitly what had once been viewed as a radical decision. In 2000, for example, the justices upheld the Miranda warning—“you have the right to remain silent”—in an opinion written by Chief Justice Rehnquist, once a vocal critic of the Warren Court case that mandated this rule. In other areas, the justices went beyond the 1960s decisions to expand or affirm individual liberties, especially the rights of women and affirmative action programs designed to remedy past racial discrimination.

Concern about whether the Supreme Court had overstepped its proper role by its aggressive expansion of Bill of Rights protections was not new in American history. It was the same criticism levied by progressive reformers early in the twentieth century against judges who cited a right to economic liberty as a shield against regulatory laws passed by democratic majorities. What made this challenge especially contentious in the late twentieth century, however, was a resurgence of what came to be known as “rights consciousness,” or a widespread willingness on the part of individuals and groups to push for the recognition of new rights. The awareness of rights to be asserted against government and others has long been a hallmark of our national culture. It is in fact a legacy of our revolutionary beginnings, but rights consciousness has rarely been stronger in our past than it has been since the 1960s. Not only has it led to claims of new rights to fit the needs of a modern age, but it has raised again questions about the role of rights in American democracy.

It is difficult to know whether decisions of the Warren Court led to the growth of rights consciousness or whether the justices simply were responding to a renewed awareness of rights. The demand for individual freedom came from many quarters. The American Civil Liberties Union, founded in 1920 to protect constitutional rights, led many of the fights for greater individual liberty. So, too, did the National Association for the Advancement of Colored People (NAACP), a significant number of national labor unions, the National Rifle Association, and a host of other interest groups. Courts can act only when someone presents a claim for a legal decision, so in some sense, the growing culture of rights arose from the demands of countless litigants. But it is also true that Supreme Court decisions during the 1960s spurred the growth of rights consciousness, if for no other reason than they influenced lower courts, which settle most cases, to be more receptive to rights claims.

When a citizen asks the courts to enforce a right, the lawsuit often results in an application that goes far beyond what he or she sought. In the early 1960s, for instance, a poor defendant, Clarence Earl Gideon, believed he had been denied his right to an attorney in his criminal trial, so he appealed his conviction. The Supreme Court agreed with him in 1963, but its decision went further and announced a right for all indigent defendants to be represented at state expense in felony trials. Later this right was extended to all criminal cases where the potential loss of liberty was at stake, even for minor crimes. The same result was true of the right to privacy, a right not found by name in the Constitution but legitimately inferred from other rights. In 1965, the Warren Court supported the argument that this right prevented a state from prohibiting the use of birth control by a married couple, but later decisions led to its application in new areas, including the right of a woman to have an abortion and protection of consenting gay adults from arrest under state laws.

As a society, we have often debated how far to extend individual rights, but some of the decisions of the 1960s and later, especially those involving civil rights, introduced a new concept, group rights, into American constitutional law. After the Supreme Court’s landmark rulings mandating equal treatment regardless of race in schools and public facilities, questions arose about how to remedy or correct racially discriminatory practices. One answer was affirmative action, which focused attention on an individual’s membership in a racial or ethnic group and allowed race to be used as a positive factor in decisions about employment and admission to higher education. These programs, which the Court has accepted as constitutional under the equal protection clause, reflected a shift from rights as a protection against government to rights as a way to change social relations. What began as an effort to correct long-standing discrimination against blacks soon moved into new rights claims for other groups that have suffered discrimination—women, gays and lesbians, ethnic minorities, and the disabled, among others.

Significantly, some of these claims are pursued in the political arena and through the legislative process, both at state and federal levels, and not through the courts alone. The Americans with Disabilities Act of 1990, for example, established legal rights for physically and mentally handicapped citizens.

“[The Constitution] is an enabling (and a constraining) document. It sets forth a mechanism for making and applying law, and it creates a framework for representative government. It protects our basic freedoms, such as our rights to speak and to worship freely. It protects the basic fairness of our system, so that majorities cannot unfairly and systematically oppress minorities. It gives us the freedom to choose. But it does not tell us what to choose. It forces us, as a community, to choose democratically how we will solve our Nation’s problems.”

Not all claims are accepted by courts, legislatures, or voters, however. In the 1970s, women’s rights advocates pushed hard for an Equal Rights Amendment—which says that equality under the law shall not be denied on the basis of one’s sex— but fell heartbreakingly short in the ratification process.

We may be more rights conscious today than at other time in our history, but we remain divided over how far our rights extend. The eruption of new claims to rights and organizations dedicated to promoting them historically has been met with resistance and angry backlash. In many ways, this conflict has made rights talk even more contagious. Rights claims, after all, are made by someone who alleges a denial of liberty against the government or someone else. It is hard to think in terms of common values or community when engaged in rights talk; too much focus on individual liberties can skew our sense of the interests we hold in common. Still, what is most striking about the conflict over rights has been its democratic character. Rights are now a matter of public debate. When we confront each other over our individual rights, we are doing the work of democracy. Like the founding generation, we are trying to figure out what rights and liberties are required for a just and free society.

It is up to each of us to claim our rights and to engage in the work of a free people. Fortunately, our history is full of individuals who have demanded their constitutional protections and, in the process, advanced liberty for us all. In the twenty-three cases discussed in this book, it is ordinary citizens, for the most part, who have sought rights they believed were lawfully theirs. The claimants represent a cross section of Americans—young, old, well known, obscure, middle class, poor, respectable, and disreputable. One of the best ways we can protect our rights and our liberty is to understand what they demanded as their right—and why. They made history when they received an answer to their claim of individual liberty, but in these instances, as the novelist William Faulkner reminded us, the past is not dead, it is not even past. The rights these individuals sought remain vital, changing expressions of freedom. As members of a democratic society, we must always decide whether they moved the nation closer to the ideals established by the founding generation and whether they still represent the values the Constitution should protect today.

“All Men Are by Nature Equally Free”

The Virginia Declaration of Rights was the first written listing of the rights of citizens in the newly independent United States. Drafted by George Mason, a wealthy planter and political leader, the declaration set forth principles of government and individual rights of citizens. Adopted unanimously by the Virginia Convention of Delegates on June 12, 1776, it served as the model for other state declarations of rights as well as the federal Bill of Rights.

I That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

II That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.

III That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation or community; of all the various modes and forms of government that is best, which is capable of producing the greatest degree of happiness and safety and is most effectually secured against the danger of maladministration; and that, whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter or abolish it, in such manner as shall be judged most conducive to the public weal.

IV That no man, or set of men, are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services; which, not being descendible, neither ought the offices of magistrate, legislator, or judge be hereditary.

V That the legislative and executive powers of the state should be separate and distinct from the judicative; and, that the members of the two first may be restrained from oppression by feeling and participating the burthens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections in which all, or any part of the former members, to be again eligible, or ineligible, as the laws shall direct.

VI That elections of members to serve as representatives of the people in assembly ought to be free; and that all men, having sufficient evidence of permanent common interest with, and attachment to, the community have the right of suffrage and cannot be taxed or deprived of their property for public uses without their own consent or that of their representatives so elected, nor bound by any law to which they have not, in like manner, assented, for the public good.

VII That all power of suspending laws, or the execution of laws, by any authority without consent of the representatives of the people is injurious to their rights and ought not to be exercised.

VIII That in all capital or criminal prosecutions a man hath a right to demand the cause and nature of his accusation to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty, nor can he be compelled to give evidence against himself; that no man be deprived of his liberty except by the law of the land or the judgement of his peers.

IX That excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted.

X That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted.

XI That in controversies respecting property and in suits between man and man, the ancient trial by jury is preferable to any other and ought to be held sacred.

XII That the freedom of the press is one of the greatest bulwarks of liberty and can never be restrained but by despotic governments.

XIII That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.

XIV That the people have a right to uniform government; and therefore, that no government separate from, or independent of, the government of Virginia, ought to be erected or established within the limits thereof.

XV That no free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue and by frequent recurrence to fundamental principles.

XVI That religion, or the duty which we owe to our Creator and the manner of discharging it, can be directed by reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.

Private Property and Public Use

In 1822, a wharf owner in Baltimore sued the city for economic loss caused when the city diverted several streams and lowered the water level around his dock. He claimed a taking of his property without just compensation, in violation of the Fifth Amendment. Chief Justice John Marshall, writing for a unanimous Supreme Court in Barron v. Baltimore (1833), concluded that the Bill of Rights restrained only the federal government, not the states. This view no longer prevails. Today, almost all of the guarantees of the Bill of Rights have been incorporated by the Fourteenth Amendment as restraints on the states.

The plaintiff in error contends that it comes within that clause of the fifth amendment to the constitution, which inhibits the taking of private property for public use, without just compensation, He insists that this amendment, being in favour of the liberty of the citizen, ought to be so construed as to restrain legislative power of a state, as well as that of the United States. If this proposition be untrue, the court can take no jurisdiction of the cause. . . .

The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states. Each state established a constitution for itself, and, in that constitution, provided such limitations and restrictions on the powers of its particular government as its judgment dictated . . . In their several constitutions they have imposed such restrictions on their representative governments as their own wisdom suggested; such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no farther than they are supposed to have a common interest. . . .

We are of opinion that the provision of the fifth amendment to the constitution, declaring that private property shall not be taken for public use without just compensation, is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states.

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By John Stuart Mill

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. A question seldom stated, and hardly ever discussed, in general terms, but which profoundly influences the practical controversies of the age by its latent presence, and is likely soon to make itself recognised as the vital question of the future. It is so far from being new, that, in a certain sense, it has divided mankind, almost from the remotest ages; but in the stage of progress into which the more civilized portions of the species have now entered, it presents itself under new conditions, and requires a different and more fundamental treatment…. [From the Introductory]

First Pub. Date

London: Longman, Roberts, & Green Co.

4th edition.

The text of this edition is in the public domain. Picture of John Stuart Mill courtesy of The Warren J. Samuels Portrait Collection at Duke University.

Introductory.

The struggle between Liberty and Authority is the most conspicuous feature in the portions of history with which we are earliest familiar, particularly in that of Greece, Rome, and England. But in old times this contest was between subjects, or some classes of subjects, and the Government. By liberty, was meant protection against the tyranny of the political rulers. The rulers were conceived (except in some of the popular governments of Greece) as in a necessarily antagonistic position to the people whom they ruled. They consisted of a governing One, or a governing tribe or caste, who derived their authority from inheritance or conquest, who, at all events, did not hold it at the pleasure of the governed, and whose supremacy men did not venture, perhaps did not desire, to contest, whatever precautions might be taken against its oppressive exercise. Their power was regarded as necessary, but also as highly dangerous; as a weapon which they would attempt to use against their subjects, no less than against external enemies. To prevent the weaker members of the community from being preyed on by innumerable vultures, it was needful that there should be an animal of prey stronger than the rest, commissioned to keep them down. But as the king of the vultures would be no less bent upon preying upon the flock than any of the minor harpies, it was indispensable to be in a perpetual attitude of defence against his beak and claws. The aim, therefore, of patriots was to set limits to the power which the ruler should be suffered to exercise over the community; and this limitation was what they meant by liberty. It was attempted in two ways. First, by obtaining a recognition of certain immunities, called political liberties or rights, which it was to be regarded as a breach of duty in the ruler to infringe, and which, if he did infringe, specific resistance, or general rebellion, was held to be justifiable. A second, and generally a later expedient, was the establishment of constitutional checks, by which the consent of the community, or of a body of some sort, supposed to represent its interests, was made a necessary condition to some of the more important acts of the governing power. To the first of these modes of limitation, the ruling power, in most European countries, was compelled, more or less, to submit. It was not so with the second; and, to attain this, or when already in some degree possessed, to attain it more completely, became everywhere the principal object of the lovers of liberty. And so long as mankind were content to combat one enemy by another, and to be ruled by a master, on condition of being guaranteed more or less efficaciously against his tyranny, they did not carry their aspirations beyond this point.

A time, however, came, in the progress of human affairs, when men ceased to think it a necessity of nature that their governors should be an independent power, opposed in interest to themselves. It appeared to them much better that the various magistrates of the State should be their tenants or delegates, revocable at their pleasure. In that way alone, it seemed, could they have complete security that the powers of government would never be abused to their disadvantage. By degrees this new demand for elective and temporary rulers became the prominent object of the exertions of the popular party, wherever any such party existed; and superseded, to a considerable extent, the previous efforts to limit the power of rulers. As the struggle proceeded for making the ruling power emanate from the periodical choice of the ruled, some persons began to think that too much importance had been attached to the limitation of the power itself. That (it might seem) was a resource against rulers whose interests were habitually opposed to those of the people. What was now wanted was, that the rulers should be identified with the people; that their interest and will should be the interest and will of the nation. The nation did not need to be protected against its own will. There was no fear of its tyrannizing over itself. Let the rulers be effectually responsible to it, promptly removable by it, and it could afford to trust them with power of which it could itself dictate the use to be made. Their power was but the nation’s own power, concentrated, and in a form convenient for exercise. This mode of thought, or rather perhaps of feeling, was common among the last generation of European liberalism, in the Continental section of which it still apparently predominates. Those who admit any limit to what a government may do, except in the case of such governments as they think ought not to exist, stand out as brilliant exceptions among the political thinkers of the Continent. A similar tone of sentiment might by this time have been prevalent in our own country, if the circumstances which for a time encouraged it, had continued unaltered.

But, in political and philosophical theories, as well as in persons, success discloses faults and infirmities which failure might have concealed from observation. The notion, that the people have no need to limit their power over themselves, might seem axiomatic, when popular government was a thing only dreamed about, or read of as having existed at some distant period of the past. Neither was that notion necessarily disturbed by such temporary aberrations as those of the French Revolution, the worst of which were the work of an usurping few, and which, in any case, belonged, not to the permanent working of popular institutions, but to a sudden and convulsive outbreak against monarchical and aristocratic despotism. In time, however, a democratic republic came to occupy a large portion of the earth’s surface, and made itself felt as one of the most powerful members of the community of nations; and elective and responsible government became subject to the observations and criticisms which wait upon a great existing fact. It was now perceived that such phrases as “self-government,” and “the power of the people over themselves,” do not express the true state of the case. The “people” who exercise the power are not always the same people with those over whom it is exercised; and the “self-government” spoken of is not the government of each by himself, but of each by all the rest. The will of the people, moreover, practically means the will of the most numerous or the most active part of the people; the majority, or those who succeed in making themselves accepted as the majority; the people, consequently, may desire to oppress a part of their number; and precautions are as much needed against this as against any other abuse of power. The limitation, therefore, of the power of government over individuals loses none of its importance when the holders of power are regularly accountable to the community, that is, to the strongest party therein. This view of things, recommending itself equally to the intelligence of thinkers and to the inclination of those important classes in European society to whose real or supposed interests democracy is adverse, has had no difficulty in establishing itself; and in political speculations “the tyranny of the majority” is now generally included among the evils against which society requires to be on its guard.

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 tyrannizing 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. Protection, therefore, against the tyranny of the magistrate is not enough: there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence: and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs, as protection against political despotism.

But though this proposition is not likely to be contested in general terms, the practical question, where to place the limit—how to make the fitting adjustment between individual independence and social control—is a subject on which nearly everything remains to be done. All that makes existence valuable to any one, depends on the enforcement of restraints upon the actions of other people. Some rules of conduct, therefore, must be imposed, by law in the first place, and by opinion on many things which are not fit subjects for the operation of law. What these rules should be, is the principal question in human affairs; but if we except a few of the most obvious cases, it is one of those which least progress has been made in resolving. No two ages, and scarcely any two countries, have decided it alike; and the decision of one age or country is a wonder to another. Yet the people of any given age and country no more suspect any difficulty in it, than if it were a subject on which mankind had always been agreed. The rules which obtain among themselves appear to them self-evident and self-justifying. This all but universal illusion is one of the examples of the magical influence of custom, which is not only, as the proverb says, a second nature, but is continually mistaken for the first. The effect of custom, in preventing any misgiving respecting the rules of conduct which mankind impose on one another, is all the more complete because the subject is one on which it is not generally considered necessary that reasons should be given, either by one person to others, or by each to himself. People are accustomed to believe, and have been encouraged in the belief by some who aspire to the character of philosophers, that their feelings, on subjects of this nature, are better than reasons, and render reasons unnecessary. The practical principle which guides them to their opinions on the regulation of human conduct, is the feeling in each person’s mind that everybody should be required to act as he, and those with whom he sympathizes, would like them to act. No one, indeed, acknowledges to himself that his standard of judgment is his own liking; but an opinion on a point of conduct, not supported by reasons, can only count as one person’s preference; and if the reasons, when given, are a mere appeal to a similar preference felt by other people, it is still only many people’s liking instead of one. To an ordinary man, however, his own preference, thus supported, is not only a perfectly satisfactory reason, but the only one he generally has for any of his notions of morality, taste, or propriety, which are not expressly written in his religious creed; and his chief guide in the interpretation even of that. Men’s opinions, accordingly, on what is laudable or blameable, are affected by all the multifarious causes which influence their wishes in regard to the conduct of others, and which are as numerous as those which determine their wishes on any other subject. Sometimes their reason—at other times their prejudices or superstitions: often their social affections, not seldom their antisocial ones, their envy or jealousy, their arrogance or contemptuousness: but most commonly, their desires or fears for themselves—their legitimate or illegitimate self-interest. Wherever there is an ascendant class, a large portion of the morality of the country emanates from its class interests, and its feelings of class superiority. The morality between Spartans and Helots, between planters and negroes, between princes and subjects, between nobles and roturiers, between men and women, has been for the most part the creation of these class interests and feelings: and the sentiments thus generated, react in turn upon the moral feelings of the members of the ascendant class, in their relations among themselves. Where, on the other hand, a class, formerly ascendant, has lost its ascendancy, or where its ascendancy is unpopular, the prevailing moral sentiments frequently bear the impress of an impatient dislike of superiority. Another grand determining principle of the rules of conduct, both in act and forbearance, which have been enforced by law or opinion, has been the servility of mankind towards the supposed preferences or aversions of their temporal masters, or of their gods. This servility, though essentially selfish, is not hypocrisy; it gives rise to perfectly genuine sentiments of abhorrence; it made men burn magicians and heretics. Among so many baser influences, the general and obvious interests of society have of course had a share, and a large one, in the direction of the moral sentiments: less, however, as a matter of reason, and on their own account, than as a consequence of the sympathies and antipathies which grew out of them: and sympathies and antipathies which had little or nothing to do with the interests of society, have made themselves felt in the establishment of moralities with quite as great force.

The likings and dislikings of society, or of some powerful portion of it, are thus the main thing which has practically determined the rules laid down for general observance, under the penalties of law or opinion. And in general, those who have been in advance of society in thought and feeling, have left this condition of things unassailed in principle, however they may have come into conflict with it in some of its details. They have occupied themselves rather in inquiring what things society ought to like or dislike, than in questioning whether its likings or dislikings should be a law to individuals. They preferred endeavouring to alter the feelings of mankind on the particular points on which they were themselves heretical, rather than make common cause in defence of freedom, with heretics generally. The only case in which the higher ground has been taken on principle and maintained with consistency, by any but an individual here and there, is that of religious belief: a case instructive in many ways, and not least so as forming a most striking instance of the fallibility of what is called the moral sense: for the odium theologicum, in a sincere bigot, is one of the most unequivocal cases of moral feeling. Those who first broke the yoke of what called itself the Universal Church, were in general as little willing to permit difference of religious opinion as that church itself. But when the heat of the conflict was over, without giving a complete victory to any party, and each church or sect was reduced to limit its hopes to retaining possession of the ground it already occupied; minorities, seeing that they had no chance of becoming majorities, were under the necessity of pleading to those whom they could not convert, for permission to differ. It is accordingly on this battle field, almost solely, that the rights of the individual against society have been asserted on broad grounds of principle, and the claim of society to exercise authority over dissentients, openly controverted. The great writers to whom the world owes what religious liberty it possesses, have mostly asserted freedom of conscience as an indefeasible right, and denied absolutely that a human being is accountable to others for his religious belief. Yet so natural to mankind is intolerance in whatever they really care about, that religious freedom has hardly anywhere been practically realized, except where religious indifference, which dislikes to have its peace disturbed by theological quarrels, has added its weight to the scale. In the minds of almost all religious persons, even in the most tolerant countries, the duty of toleration is admitted with tacit reserves. One person will bear with dissent in matters of church government, but not of dogma; another can tolerate everybody, short of a Papist or an Unitarian; another, every one who believes in revealed religion; a few extend their charity a little further, but stop at the belief in a God and in a future state. Wherever the sentiment of the majority is still genuine and intense, it is found to have abated little of its claim to be obeyed.

In England, from the peculiar circumstances of our political history, though the yoke of opinion is perhaps heavier, that of law is lighter, than in most other countries of Europe; and there is considerable jealousy of direct interference, by the legislative or the executive power, with private conduct; not so much from any just regard for the independence of the individual, as from the still subsisting habit of looking on the government as representing an opposite interest to the public. The majority have not yet learnt to feel the power of the government their power, or its opinions their opinions. When they do so, individual liberty will probably be as much exposed to invasion from the government, as it already is from public opinion. But, as yet, there is a considerable amount of feeling ready to be called forth against any attempt of the law to control individuals in things in which they have not hitherto been accustomed to be controlled by it; and this with very little discrimination as to whether the matter is, or is not, within the legitimate sphere of legal control; insomuch that the feeling, highly salutary on the whole, is perhaps quite as often misplaced as well grounded in the particular instances of its application. There is, in fact, no recognised principle by which the propriety or impropriety of government interference is customarily tested. People decide according to their personal preferences. Some, whenever they see any good to be done, or evil to be remedied, would willingly instigate the government to undertake the business; while others prefer to bear almost any amount of social evil, rather than add one to the departments of human interests amenable to governmental control. And men range themselves on one or the other side in any particular case, according to this general direction of their sentiments; or according to the degree of interest which they feel in the particular thing which it is proposed that the government should do, or according to the belief they entertain that the government would, or would not, do it in the manner they prefer; but very rarely on account of any opinion to which they consistently adhere, as to what things are fit to be done by a government. And it seems to me that in consequence of this absence of rule or principle, one side is at present as often wrong as the other; the interference of government is, with about equal frequency, improperly invoked and improperly condemned.

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, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. 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 civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him, must be calculated to produce evil to some one else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign.

It is, perhaps, hardly necessary to say that this doctrine is meant to apply only to human beings in the maturity of their faculties. We are not speaking of children, or of young persons below the age which the law may fix as that of manhood or womanhood. Those who are still in a state to require being taken care of by others, must be protected against their own actions as well as against external injury. 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 effecting that end. Liberty, as a principle, has no application to any state of things anterior to the time when mankind have become capable of being improved by free and equal discussion. Until then, there is nothing for them but implicit obedience to an Akbar or a Charlemagne, if they are so fortunate as to find one. But as soon as mankind have attained the capacity of being guided to their own improvement by conviction or persuasion (a period long since reached in all nations with whom we need here concern ourselves), compulsion, either in the direct form or in that of pains and penalties for non-compliance, is no longer admissible as a means to their own good, and justifiable only for the security of others.

It is proper to state that I forego any advantage which could be derived to my argument from the idea of abstract right, as a thing independent of utility. I regard utility as the ultimate appeal on all ethical questions; but it must be utility in the largest sense, grounded on the permanent interests of man as a progressive being. Those interests, I contend, authorize the subjection of individual spontaneity to external control, only in respect to those actions of each, which concern the interest of other people. If any one does an act hurtful to others, there is a primâ facie case for punishing him, by law, or, where legal penalties are not safely applicable, by general disapprobation. There are also many positive acts for the benefit of others, which he may rightfully be compelled to perform; such as, to give evidence in a court of justice; to bear his fair share in the common defence, or in any other joint work necessary to the interest of the society of which he enjoys the protection; and to perform certain acts of individual beneficence, such as saving a fellow-creature’s life, or interposing to protect the defenceless against ill-usage, things which whenever it is obviously a man’s duty to do, he may rightfully be made responsible to society for not doing. A person may cause evil to others not only by his actions but by his inaction, and in either case he is justly accountable to them for the injury. The latter case, it is true, requires a much more cautious exercise of compulsion than the former. To make any one answerable for doing evil to others, is the rule; to make him answerable for not preventing evil, is, comparatively speaking, the exception. Yet there are many cases clear enough and grave enough to justify that exception. In all things which regard the external relations of the individual, he is de jure amenable to those whose interests are concerned, and if need be, to society as their protector. There are often good reasons for not holding him to the responsibility; but these reasons must arise from the special expediencies of the case: either because it is a kind of case in which he is on the whole likely to act better, when left to his own discretion, than when controlled in any way in which society have it in their power to control him; or because the attempt to exercise control would produce other evils, greater than those which it would prevent. When such reasons as these preclude the enforcement of responsibility, the conscience of the agent himself should step into the vacant judgment seat, and protect those interests of others which have no external protection; judging himself all the more rigidly, because the case does not admit of his being made accountable to the judgment of his fellow-creatures.

But there is a sphere of action in which society, as distinguished from the individual, has, if any, only an indirect interest; comprehending all that portion of a person’s life and conduct which affects only himself, or if it also affects others, only with their free, voluntary, and undeceived consent and participation. When I say only himself, I mean directly, and in the first instance: for whatever affects himself, may affect others through himself; and the objection which may be grounded on this contingency, will receive consideration in the sequel. 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.

Though this doctrine is anything but new, and, to some persons, may have the air of a truism, there is no doctrine which stands more directly opposed to the general tendency of existing opinion and practice. Society has expended fully as much effort in the attempt (according to its lights) to compel people to conform to its notions of personal, as of social excellence. The ancient commonwealths thought themselves entitled to practise, and the ancient philosophers countenanced, the regulation of every part of private conduct by public authority, on the ground that the State had a deep interest in the whole bodily and mental discipline of every one of its citizens; a mode of thinking which may have been admissible in small republics surrounded by powerful enemies, in constant peril of being subverted by foreign attack or internal commotion, and to which even a short interval of relaxed energy and self-command might so easily be fatal, that they could not afford to wait for the salutary permanent effects of freedom. In the modern world, the greater size of political communities, and above all, the separation between spiritual and temporal authority (which placed the direction of men’s consciences in other hands than those which controlled their worldly affairs), prevented so great an interference by law in the details of private life; but the engines of moral repression have been wielded more strenuously against divergence from the reigning opinion in self-regarding, than even in social matters; religion, the most powerful of the elements which have entered into the formation of moral feeling, having almost always been governed either by the ambition of a hierarchy, seeking control over every department of human conduct, or by the spirit of Puritanism. And some of those modern reformers who have placed themselves in strongest opposition to the religions of the past, have been noway behind either churches or sects in their assertion of the right of spiritual domination: M. Comte, in particular, whose social system, as unfolded in his Système de Politique Positive, aims at establishing (though by moral more than by legal appliances) a despotism of society over the individual, surpassing anything contemplated in the political ideal of the most rigid disciplinarian among the ancient philosophers.

Apart from the peculiar tenets of individual thinkers, there is also in the world at large an increasing inclination to stretch unduly the powers of society over the individual, both by the force of opinion and even by that of legislation: and as the tendency of all the changes taking place in the world is to strengthen society, and diminish the power of the individual, this encroachment is not one of the evils which tend spontaneously to disappear, but, on the contrary, to grow more and more formidable. The disposition of mankind, whether as rulers or as fellow-citizens, to impose their own opinions and inclinations as a rule of conduct on others, is so energetically supported by some of the best and by some of the worst feelings incident to human nature, that it is hardly ever kept under restraint by anything but want of power; and as the power is not declining, but growing, unless a strong barrier of moral conviction can be raised against the mischief, we must expect, in the present circumstances of the world, to see it increase.

It will be convenient for the argument, if, instead of at once entering upon the general thesis, we confine ourselves in the first instance to a single branch of it, on which the principle here stated is, if not fully, yet to a certain point, recognised by the current opinions. This one branch is the Liberty of Thought: from which it is impossible to separate the cognate liberty of speaking and of writing. Although these liberties, to some considerable amount, form part of the political morality of all countries which profess religious toleration and free institutions, the grounds, both philosophical and practical, on which they rest, are perhaps not so familiar to the general mind, nor so thoroughly appreciated by many even of the leaders of opinion, as might have been expected. Those grounds, when rightly understood, are of much wider application than to only one division of the subject, and a thorough consideration of this part of the question will be found the best introduction to the remainder. Those to whom nothing which I am about to say will be new, may therefore, I hope, excuse me, if on a subject which for now three centuries has been so often discussed, I venture on one discussion more.

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Positive and Negative Liberty

Negative liberty is the absence of obstacles, barriers or constraints. One has negative liberty to the extent that actions are available to one in this negative sense. Positive liberty is the possibility of acting — or the fact of acting — in such a way as to take control of one’s life and realize one’s fundamental purposes. While negative liberty is usually attributed to individual agents, positive liberty is sometimes attributed to collectivities, or to individuals considered primarily as members of given collectivities.

The idea of distinguishing between a negative and a positive sense of the term ‘liberty’ goes back at least to Kant, and was examined and defended in depth by Isaiah Berlin in the 1950s and ’60s. Discussions about positive and negative liberty normally take place within the context of political and social philosophy. They are distinct from, though sometimes related to, philosophical discussions about free will . Work on the nature of positive liberty often overlaps, however, with work on the nature of autonomy .

As Berlin showed, negative and positive liberty are not merely two distinct kinds of liberty; they can be seen as rival, incompatible interpretations of a single political ideal. Since few people claim to be against liberty, the way this term is interpreted and defined can have important political implications. Political liberalism tends to presuppose a negative definition of liberty: liberals generally claim that if one favors individual liberty one should place strong limitations on the activities of the state. Critics of liberalism often contest this implication by contesting the negative definition of liberty: they argue that the pursuit of liberty understood as self-realization or as self-determination (whether of the individual or of the collectivity) can require state intervention of a kind not normally allowed by liberals.

Many authors prefer to talk of positive and negative freedom . This is only a difference of style, and the terms ‘liberty’ and ‘freedom’ are normally used interchangeably by political and social philosophers. Although some attempts have been made to distinguish between liberty and freedom (Pitkin 1988; Williams 2001; Dworkin 2011), generally speaking these have not caught on. Neither can they be translated into other European languages, which contain only the one term, of either Latin or Germanic origin (e.g. liberté, Freiheit), where English contains both.

1. Two Concepts of Liberty

2. the paradox of positive liberty, 3.1 positive liberty as content-neutral, 3.2 republican liberty, 4. one concept of liberty: freedom as a triadic relation, 5. the analysis of constraints: their types and their sources, 6. the concept of overall freedom, 7. is the distinction still useful, introductory works, other works, other internet resources, related entries.

Imagine you are driving a car through town, and you come to a fork in the road. You turn left, but no one was forcing you to go one way or the other. Next you come to a crossroads. You turn right, but no one was preventing you from going left or straight on. There is no traffic to speak of and there are no diversions or police roadblocks. So you seem, as a driver, to be completely free. But this picture of your situation might change quite dramatically if we consider that the reason you went left and then right is that you’re addicted to cigarettes and you’re desperate to get to the tobacconists before it closes. Rather than driving , you feel you are being driven , as your urge to smoke leads you uncontrollably to turn the wheel first to the left and then to the right. Moreover, you’re perfectly aware that your turning right at the crossroads means you’ll probably miss a train that was to take you to an appointment you care about very much. You long to be free of this irrational desire that is not only threatening your longevity but is also stopping you right now from doing what you think you ought to be doing.

This story gives us two contrasting ways of thinking of liberty. On the one hand, one can think of liberty as the absence of obstacles external to the agent. You are free if no one is stopping you from doing whatever you might want to do. In the above story you appear, in this sense, to be free. On the other hand, one can think of liberty as the presence of control on the part of the agent. To be free, you must be self-determined, which is to say that you must be able to control your own destiny in your own interests. In the above story you appear, in this sense, to be unfree: you are not in control of your own destiny, as you are failing to control a passion that you yourself would rather be rid of and which is preventing you from realizing what you recognize to be your true interests. One might say that while on the first view liberty is simply about how many doors are open to the agent, on the second view it is more about going through the right doors for the right reasons.

In a famous essay first published in 1958, Isaiah Berlin called these two concepts of liberty negative and positive respectively (Berlin 1969). [ 1 ] The reason for using these labels is that in the first case liberty seems to be a mere absence of something (i.e. of obstacles, barriers, constraints or interference from others), whereas in the second case it seems to require the presence of something (i.e. of control, self-mastery, self-determination or self-realization). In Berlin’s words, we use the negative concept of liberty in attempting to answer the question “What is the area within which the subject — a person or group of persons — is or should be left to do or be what he is able to do or be, without interference by other persons?”, whereas we use the positive concept in attempting to answer the question “What, or who, is the source of control or interference that can determine someone to do, or be, this rather than that?” (1969, pp. 121–22).

It is useful to think of the difference between the two concepts in terms of the difference between factors that are external and factors that are internal to the agent. While theorists of negative freedom are primarily interested in the degree to which individuals or groups suffer interference from external bodies, theorists of positive freedom are more attentive to the internal factors affecting the degree to which individuals or groups act autonomously. Given this difference, one might be tempted to think that a political philosopher should concentrate exclusively on negative freedom, a concern with positive freedom being more relevant to psychology or individual morality than to political and social institutions. This, however, would be premature, for among the most hotly debated issues in political philosophy are the following: Is the positive concept of freedom a political concept? Can individuals or groups achieve positive freedom through political action? Is it possible for the state to promote the positive freedom of citizens on their behalf? And if so, is it desirable for the state to do so? The classic texts in the history of western political thought are divided over how these questions should be answered: theorists in the classical liberal tradition, like Benjamin Constant, Wilhelm von Humboldt, Herbert Spencer, and J.S. Mill, are typically classed as answering ‘no’ and therefore as defending a negative concept of political freedom; theorists that are critical of this tradition, like Jean-Jacques Rousseau, G.W.F. Hegel, Karl Marx and T.H. Green, are typically classed as answering ‘yes’ and as defending a positive concept of political freedom.

In its political form, positive freedom has often been thought of as necessarily achieved through a collectivity. Perhaps the clearest case is that of Rousseau’s theory of freedom, according to which individual freedom is achieved through participation in the process whereby one’s community exercises collective control over its own affairs in accordance with the ‘general will’. Put in the simplest terms, one might say that a democratic society is a free society because it is a self-determined society, and that a member of that society is free to the extent that he or she participates in its democratic process. But there are also individualist applications of the concept of positive freedom. For example, it is sometimes said that a government should aim actively to create the conditions necessary for individuals to be self-sufficient or to achieve self-realization. The welfare state has sometimes been defended on this basis, as has the idea of a universal basic income. The negative concept of freedom, on the other hand, is most commonly assumed in liberal defences of the constitutional liberties typical of liberal-democratic societies, such as freedom of movement, freedom of religion, and freedom of speech, and in arguments against paternalist or moralist state intervention. It is also often invoked in defences of the right to private property. This said, some philosophers have contested the claim that private property necessarily enhances negative liberty (Cohen 1995, 2006), and still others have tried to show that negative liberty can ground a form of egalitarianism (Steiner 1994).

After Berlin, the most widely cited and best developed analyses of the negative concept of liberty include Hayek (1960), Day (1971), Oppenheim (1981), Miller (1983) and Steiner (1994). Among the most prominent contemporary analyses of the positive concept of liberty are Milne (1968), Gibbs (1976), C. Taylor (1979) and Christman (1991, 2005).

Many liberals, including Berlin, have suggested that the positive concept of liberty carries with it a danger of authoritarianism. Consider the fate of a permanent and oppressed minority. Because the members of this minority participate in a democratic process characterized by majority rule, they might be said to be free on the grounds that they are members of a society exercising self-control over its own affairs. But they are oppressed, and so are surely unfree. Moreover, it is not necessary to see a society as democratic in order to see it as self-controlled; one might instead adopt an organic conception of society, according to which the collectivity is to be thought of as a living organism, and one might believe that this organism will only act rationally, will only be in control of itself, when its various parts are brought into line with some rational plan devised by its wise governors (who, to extend the metaphor, might be thought of as the organism’s brain). In this case, even the majority might be oppressed in the name of liberty.

Such justifications of oppression in the name of liberty are no mere products of the liberal imagination, for there are notorious historical examples of their endorsement by authoritarian political leaders. Berlin, himself a liberal and writing during the cold war, was clearly moved by the way in which the apparently noble ideal of freedom as self-mastery or self-realization had been twisted and distorted by the totalitarian dictators of the twentieth century — most notably those of the Soviet Union — so as to claim that they, rather than the liberal West, were the true champions of freedom. The slippery slope towards this paradoxical conclusion begins, according to Berlin, with the idea of a divided self. To illustrate: the smoker in our story provides a clear example of a divided self, for she is both a self that desires to get to an appointment and a self that desires to get to the tobacconists, and these two desires are in conflict. We can now enrich this story in a plausible way by adding that one of these selves — the keeper of appointments — is superior to the other: the self that is a keeper of appointments is thus a ‘higher’ self, and the self that is a smoker is a ‘lower’ self. The higher self is the rational, reflecting self, the self that is capable of moral action and of taking responsibility for what she does. This is the true self, for rational reflection and moral responsibility are the features of humans that mark them off from other animals. The lower self, on the other hand, is the self of the passions, of unreflecting desires and irrational impulses. One is free, then, when one’s higher, rational self is in control and one is not a slave to one’s passions or to one’s merely empirical self. The next step down the slippery slope consists in pointing out that some individuals are more rational than others, and can therefore know best what is in their and others’ rational interests. This allows them to say that by forcing people less rational than themselves to do the rational thing and thus to realize their true selves, they are in fact liberating them from their merely empirical desires. Occasionally, Berlin says, the defender of positive freedom will take an additional step that consists in conceiving of the self as wider than the individual and as represented by an organic social whole — “a tribe, a race, a church, a state, the great society of the living and the dead and the yet unborn”. The true interests of the individual are to be identified with the interests of this whole, and individuals can and should be coerced into fulfilling these interests, for they would not resist coercion if they were as rational and wise as their coercers. “Once I take this view”, Berlin says, “I am in a position to ignore the actual wishes of men or societies, to bully, oppress, torture in the name, and on behalf, of their ‘real’ selves, in the secure knowledge that whatever is the true goal of man ... must be identical with his freedom” (Berlin 1969, pp. 132–33).

Those in the negative camp try to cut off this line of reasoning at the first step, by denying that there is any necessary relation between one’s freedom and one’s desires. Since one is free to the extent that one is externally unprevented from doing things, they say, one can be free to do what one does not desire to do. If being free meant being unprevented from realizing one’s desires, then one could, again paradoxically, reduce one’s unfreedom by coming to desire fewer of the things one is unfree to do. One could become free simply by contenting oneself with one’s situation. A perfectly contented slave is perfectly free to realize all of her desires. Nevertheless, we tend to think of slavery as the opposite of freedom. More generally, freedom is not to be confused with happiness, for in logical terms there is nothing to stop a free person from being unhappy or an unfree person from being happy. The happy person might feel free, but whether they are free is another matter (Day, 1970). Negative theorists of freedom therefore tend to say not that having freedom means being unprevented from doing as one desires, but that it means being unprevented from doing whatever one might desire to do (Steiner 1994. Cf. Van Parijs 1995; Sugden 2006).

Some theorists of positive freedom bite the bullet and say that the contented slave is indeed free — that in order to be free the individual must learn, not so much to dominate certain merely empirical desires, but to rid herself of them. She must, in other words, remove as many of her desires as possible. As Berlin puts it, if I have a wounded leg ‘there are two methods of freeing myself from pain. One is to heal the wound. But if the cure is too difficult or uncertain, there is another method. I can get rid of the wound by cutting off my leg’ (1969, pp. 135–36). This is the strategy of liberation adopted by ascetics, stoics and Buddhist sages. It involves a ‘retreat into an inner citadel’ — a soul or a purely noumenal self — in which the individual is immune to any outside forces. But this state, even if it can be achieved, is not one that liberals would want to call one of freedom, for it again risks masking important forms of oppression. It is, after all, often in coming to terms with excessive external limitations in society that individuals retreat into themselves, pretending to themselves that they do not really desire the worldly goods or pleasures they have been denied. Moreover, the removal of desires may also be an effect of outside forces, such as brainwashing, which we should hardly want to call a realization of freedom.

Because the concept of negative freedom concentrates on the external sphere in which individuals interact, it seems to provide a better guarantee against the dangers of paternalism and authoritarianism perceived by Berlin. To promote negative freedom is to promote the existence of a sphere of action within which the individual is sovereign, and within which she can pursue her own projects subject only to the constraint that she respect the spheres of others. Humboldt and Mill, both advocates of negative freedom, compared the development of an individual to that of a plant: individuals, like plants, must be allowed to grow, in the sense of developing their own faculties to the full and according to their own inner logic. Personal growth is something that cannot be imposed from without, but must come from within the individual.

3. Two Attempts to Create a Third Way

Critics, however, have objected that the ideal described by Humboldt and Mill looks much more like a positive concept of liberty than a negative one. Positive liberty consists, they say, in exactly this growth of the individual: the free individual is one that develops, determines and changes her own desires and interests autonomously and from within. This is not liberty as the mere absence of obstacles, but liberty as autonomy or self-realization. Why should the mere absence of state interference be thought to guarantee such growth? Is there not some third way between the extremes of totalitarianism and the minimal state of the classical liberals — some non-paternalist, non-authoritarian means by which positive liberty in the above sense can be actively promoted?

Much of the more recent work on positive liberty has been motivated by a dissatisfaction with the ideal of negative liberty combined with an awareness of the possible abuses of the positive concept so forcefully exposed by Berlin. John Christman (1991, 2005, 2009, 2013), for example, has argued that positive liberty concerns the ways in which desires are formed — whether as a result of rational reflection on all the options available, or as a result of pressure, manipulation or ignorance. What it does not regard, he says, is the content of an individual’s desires. The promotion of positive freedom need not therefore involve the claim that there is only one right answer to the question of how a person should live, nor need it allow, or even be compatible with, a society forcing its members into given patterns of behavior. Take the example of a Muslim woman who claims to espouse the fundamentalist doctrines generally followed by her family and the community in which she lives. On Christman’s account, this person is positively unfree if her desire to conform was somehow oppressively imposed upon her through indoctrination, manipulation or deceit. She is positively free, on the other hand, if she arrived at her desire to conform while aware of other reasonable options and she weighed and assessed these other options rationally. Even if this woman seems to have a preference for subservient behavior, there is nothing necessarily freedom-enhancing or freedom-restricting about her having the desires she has, since freedom regards not the content of these desires but their mode of formation. On this view, forcing her to do certain things rather than others can never make her more free, and Berlin’s paradox of positive freedom would seem to have been avoided.

This more ‘procedural’ account of positive liberty allows us to point to kinds of internal constraint that seem too fall off the radar if we adopt only negative concept. For example, some radical political theorists believe it can help us to make sense of forms of oppression and structural injustice that cannot be traced to overt acts of prevention or coercion. On the one hand, in agreement with Berlin, we should recognize the dangers of that come with promoting the values or interests of a person’s ‘true self’ in opposition to what they manifestly desire. Thus, the procedural account avoids all reference to a ‘true self’. On the other, we should recognize that people’s actual selves are inevitably formed in a social context and that their values and senses of identity (for example, in terms of gender or race or nationality) are shaped by cultural influences. In this sense, the self is ‘socially constructed’, and this social construction can itself occur in oppressive ways. The challenge, then, is to show how a person’s values can be thus shaped but without the kind of oppressive imposition or manipulation that comes not only from political coercion but also, more subtly, from practices or institutions that stigmatize or marginalize certain identities or that attach costs to the endorsement of values deviating from acceptable norms, for these kinds of imposition or manipulation can be just another way of promoting a substantive ideal of the self. And this was exactly the danger against which Berlin was warning, except that the danger is less visible and can be created unintentionally (Christman 2013, 2015, 2021; Hirschmann 2003, 2013; Coole 2013).

While this theory of positive freedom undoubtedly provides a tool for criticizing the limiting effects of certain practices and institutions in contemporary liberal societies, it remains to be seen what kinds of political action can be pursued in order to promote content-neutral positive liberty without encroaching on any individual’s rightful sphere of negative liberty. Thus, the potential conflict between the two ideals of negative and positive freedom might survive Christman’s alternative analysis, albeit in a milder form. Even if we rule out coercing individuals into specific patterns of behavior, a state interested in promoting content-neutral positive liberty might still have considerable space for intervention aimed at ‘public enlightenment’, perhaps subsidizing some kinds of activities (in order to encourage a plurality of genuine options) and financing such intervention through taxation. Liberals might criticize this kind of intervention on anti-paternalist grounds, objecting that such measures will require the state to use resources in ways that the supposedly heteronomous individuals, if left to themselves, might have chosen to spend in other ways. In other words, even in its content-neutral form, the ideal of positive freedom might still conflict with the liberal idea of respect for persons, one interpretation of which involves viewing individuals from the outside and taking their choices at face value. From a liberal point of view, the blindness to internal constraints can be intentional (Carter 2011a). Some liberals will make an exception to this restriction on state intervention in the case of the education of children, in such a way as to provide for the active cultivation of open minds and rational reflection. Even here, however, other liberals will object that the right to negative liberty includes the right to decide how one’s children should be educated.

Is it necessary to refer to internal constraints in order to make sense of the phenomena of oppression and structural injustice? Some might contest this view, or say that it is true only up to a point, for there are at least two reasons for thinking that the oppressed are lacking in negative liberty. First, while Berlin himself equated economic and social disadvantages with natural disabilities, claiming that neither represented constraints on negative liberty but only on personal abilities, many theorists of negative liberty disagree: if I lack the money to buy a jacket from a clothes shop, then any attempt on my part to carry away the jacket is likely to meet with preventive actions or punishment on the part of the shop keeper or the agents of the state. This is a case of interpersonal interference, not merely of personal inability. In the normal circumstances of a market economy, purchasing power is indeed a very reliable indicator of how far other people will stop you from doing certain things if you try. It is therefore strongly correlated with degrees of negative freedom (Cohen 1995, 2011; Waldron 1993; Carter 2007; Grant 2013). Thus, while the promotion of content-neutral positive liberty might imply the transfer of certain kinds of resources to members of disadvantaged groups, the same might be true of the promotion of negative liberty. Second, the negative concept of freedom can be applied directly to disadvantaged groups as well as to their individual members. Some social structures may be such as to tolerate the liberation of only a limited number of members of a given group. G.A. Cohen famously focused on the case proletarians who can escape their condition by successfully setting up a business of their own though a mixture of hard work and luck. In such cases, while each individual member of the disadvantaged group might be negatively free in the sense of being unprevented from choosing the path of liberation, the freedom of the individual is conditional on the unfreedom of the majority of the rest of the group, since not all can escape in this way. Each individual member of the class therefore partakes in a form of collective negative unfreedom (Cohen 1988, 2006; for discussion see Mason 1996; Hindricks 2008; Grant 2013; Schmidt 2020).

Another increasingly influential group of philosophers has rejected both the negative and the positive conception, claiming that liberty is not merely the enjoyment of a sphere of non-interference but the enjoyment of certain conditions in which such non-interference is guaranteed (Pettit 1997, 2001, 2014; Skinner 1998, 2002; Weinstock and Nadeau 2004; Laborde and Maynor 2008; Lovett 2010, forthcoming; Breen and McBride 2015, List and Valentini 2016). These conditions may include the presence of a democratic constitution and a series of safeguards against a government wielding power arbitrarily, including popular control and the separation of powers. As Berlin admits, on the negative view, I am free even if I live in a dictatorship just as long as the dictator happens, on a whim, not to interfere with me (see also Hayek 1960). There is no necessary connection between negative liberty and any particular form of government. Is it not counterintuitive to say that I can in theory be free even if I live in a dictatorship, or that a slave can enjoy considerable liberty as long as the slave-owner is compassionate and generous? Would my subjection to the arbitrary power of a dictator or slave-owner not itself be sufficient to qualify me as unfree? If it would be, then we should say that I am free only if I live in a society with the kinds of political institutions that guarantee the independence of each citizen from such arbitrary power. Quentin Skinner has called this view of freedom ‘neo-Roman’, invoking ideas about freedom both of the ancient Romans and of a number of Renaissance and early modern writers. Philip Pettit has called the same view ‘republican’, and this label has generally prevailed in the recent literature.

Republican freedom can be thought of as a kind of status : to be a free person is to enjoy the rights and privileges attached to the status of republican citizenship, whereas the paradigm of the unfree person is the slave. Freedom is not simply a matter of non-interference, for a slave may enjoy a great deal of non-interference at the whim of her master. What makes her unfree is her status, such that she is permanently exposed to interference of any kind. Even if the slave enjoys non-interference, she is, as Pettit puts it, ‘dominated’, because she is permanently subject to the arbitrary power of her owner.

According to Pettit, then, republicans conceive of freedom not as non-interference, as on the standard negative view, but as ‘non-domination’. Non-domination is distinct from negative freedom, he says, for two reasons. First, as we have seen, one can enjoy non-interference without enjoying non-domination. Second, one can enjoy non-domination while nevertheless being interfered with, just as long as the interference in question is constrained to track one’s avowed interests thanks to republican power structures: only arbitrary power is inimical to freedom, not power as such.

On the other hand, republican freedom is also distinct from positive freedom as expounded and criticized by Berlin. First, republican freedom does not consist in the activity of virtuous political participation; rather, that participation is seen as instrumentally related to freedom as non-domination. Secondly, the republican concept of freedom cannot lead to anything like the oppressive consequences feared by Berlin, because it has a commitment to non-domination and to liberal-democratic institutions already built into it.

Pettit’s idea of freedom as non domination has caught the imagination of a great many political theorists over the last two decades. One source of its popularity lies in the fact that it seems to make sense of the phenomena of oppression and structural injustice referred to above, but without necessarily relying on references to internal constraints. It has been applied not only to relations of domination between governments and citizens, but also to relations of domination between employers and workers (Breen and McBride 2015), between husbands and wives (Lovett forthcoming), and between able-bodied and disabled people (De Wispelaere and Casassas 2014).

It remains to be seen, however, whether the republican concept of freedom is ultimately distinguishable from the negative concept, or whether republican writers on freedom have not simply provided good arguments to the effect that negative freedom is best promoted, on balance and over time , through certain kinds of political institutions rather than others. While there is no necessary connection between negative liberty and democratic government, there may nevertheless be a strong empirical correlation between the two. Ian Carter (1999, 2008), Matthew H. Kramer (2003, 2008), and Robert Goodin and Frank Jackson (2007) have argued, along these lines, that republican policies are best defended empirically on the basis of the standard negative ideal of freedom, rather than on the basis of a conceptual challenge to that ideal. An important premise in such an argument is that the extent of a person’s negative freedom is a function not simply of how many single actions are prevented, but of how many different act-combinations are prevented. On this basis, people who can achieve their goals only by bowing and scraping to their masters must be seen as less free, negatively, than people who can achieve those goals unconditionally. Another important premise is that the extent to which people are negatively free depends, in part, on the probability with which they will be constrained from performing future acts or act-combinations. People who are subject to arbitrary power can be seen as less free in the negative sense even if they do not actually suffer interference, because the probability of their suffering constraints is always greater ( ceteris paribus , as a matter of empirical fact) than it would be if they were not subject to that arbitrary power. Only this greater probability, they say, can adequately explain republican references to the ‘fear’, the ‘sense of exposure’, and the ‘precariousness’ of the dominated (for further discussion see Bruin 2009, Lang 2012, Shnayderman 2012, Kirby 2016, Carter and Shnayderman 2019).

In reply to the above point about the relevance of probabilities, republicans have insisted that freedom as non-domination is nevertheless distinct from negative liberty because what matters for an agent’s freedom is the impossibility of others interfering, not the mere improbability of their doing so. Consider the example of gender relations with the context of marriage. A husband might be kind and generous, or indeed have a strong sense of egalitarian justice, and therefore be extremely unlikely ever to deny his wife the same opportunities as he himself enjoys; but the wife is still dominated if the structure of norms in her society is such as to permit husbands to frustrate the choices of their wives in numerous ways. If she lives in such a society, she is still subject to the husband’s power whether he likes it or not. And whether the husband likes it or not, the wife’s subjection to his power will tend to influence how third parties treat her – for example, in terms of offering employment opportunities.

Taken at face value, however, the requirement of impossibility of interference seems over demanding, as it is never completely impossible for others to constrain me. It is not impossible that I be stabbed by someone as I walk down the street this afternoon. Indeed, the possible world in which this event occurs is very close to the actual world, even if the event is improbable in the actual world. If the mere possibility of the stabbing makes me unfree to walk down the street, then unfreedom is everywhere and the achievement of freedom is itself virtually impossible. To avoid this worry, republicans have qualified their impossibility requirement: for me to be free to walk down the street, it must be impossible for others to stab me with impunity (Pettit 2008a, 2008b; Skinner 2008). This qualification makes the impossibility requirement more realistic. Nevertheless, the qualification is open to objections. Is ‘impunity’ a purely formal requirement, or should we say that no one can carry out a street stabbing with impunity if, say, at least 70% of such stabbings lead to prosecution? Even if 100% of such stabbings lead to prosecution, there will still be some stabbings. Will they not be sources of unfreedom for the victims?

More recently some republicans have sidelined the notion of impunity of interference in favour of that of ‘ignorability’ of interference (Ingham and Lovett 2019). I am free to make certain choices if the structure of effective societal norms, whether legal or customary, is such as to constrain the ability of anyone else to frustrate those choices, to the point where the possibility of such frustration, despite existing, is remote enough to be something I can ignore. Once I can ignore that possibility, then the structure of effective norms makes me safe by removing any sense of exposure to interference. Defenders of the negative concept of liberty might respond to this move by saying that the criterion of ignorability looks very much like a criterion of trivially low probability: we consider ourselves free to do x to the extent that the system of enforced norms deters others’ prevention of x in such a way as to make that prevention improbable.

The jury is still out on whether republicans have successfully carved out a third concept of freedom that is really distinct from those of negative and positive liberty. This conceptual uncertainty need not itself cast doubt on the distinctness and attractiveness of republicanism as a set of political prescriptions. Rather, what it leaves open is the question of the ultimate normative bases of those prescriptions: is ‘non-domination’ something that supervenes on certain configurations of negative freedom and unfreedom, and therefore explainable in terms of such configurations, or is it something truly distinct from those configurations?

The two sides identified by Berlin disagree over which of two different concepts best captures the political ideal of ‘liberty’. Does this fact not denote the presence of some more basic agreement between the two sides? How, after all, could they see their disagreement as one about the nature of liberty if they did not think of themselves as in some sense talking about the same thing ? In an influential article, the American legal philosopher Gerald MacCallum (1967) put forward the following answer: there is in fact only one basic concept of freedom, on which both sides in the debate converge . What the so-called negative and positive theorists disagree about is how this single concept of freedom should be interpreted. Indeed, in MacCallum’s view, there are a great many different possible interpretations of freedom, and it is only Berlin’s artificial dichotomy that has led us to think in terms of there being two.

MacCallum defines the basic concept of freedom — the concept on which everyone agrees — as follows: a subject, or agent, is free from certain constraints, or preventing conditions, to do or become certain things. Freedom is therefore a triadic relation — that is, a relation between three things : an agent, certain preventing conditions, and certain doings or becomings of the agent. Any statement about freedom or unfreedom can be translated into a statement of the above form by specifying what is free or unfree, from what it is free or unfree, and what it is free or unfree to do or become . Any claim about the presence or absence of freedom in a given situation will therefore make certain assumptions about what counts as an agent, what counts as a constraint or limitation on freedom, and what counts as a purpose that the agent can be described as either free or unfree to carry out.

The definition of freedom as a triadic relation was first put forward in the seminal work of Felix Oppenheim in the 1950s and 60s. Oppenheim saw that an important meaning of ‘freedom’ in the context of political and social philosophy was as a relation between two agents and a particular (impeded or unimpeded) action. However, Oppenheim’s interpretation of freedom was an example of what Berlin would call a negative concept. What MacCallum did was to generalize this triadic structure so that it would cover all possible claims about freedom, whether of the negative or the positive variety. In MacCallum’s framework, unlike in Oppenheim’s, the interpretation of each of the three variables is left open. In other words, MacCallum’s position is a meta-theoretical one: his is a theory about the differences between theorists of freedom.

To illustrate MacCallum’s point, let us return to the example of the smoker driving to the tobacconists. In describing this person as either free or unfree, we shall be making assumptions about each of MacCallum’s three variables. If we say that the driver is free , what we shall probably mean is that an agent, consisting in the driver’s empirical self, is free from external (physical or legal) obstacles to do whatever he or she might want to do. If, on the other hand, we say that the driver is unfree , what we shall probably mean is that an agent, consisting in a higher or rational self, is made unfree by internal, psychological constraints to carry out some rational, authentic or virtuous plan. Notice that in both claims there is a negative element and a positive element: each claim about freedom assumes both that freedom is freedom from something (i.e., preventing conditions) and that it is freedom to do or become something. The dichotomy between ‘freedom from’ and ‘freedom to’ is therefore a false one, and it is misleading to say that those who see the driver as free employ a negative concept and those who see the driver as unfree employ a positive one. What these two camps differ over is the way in which one should interpret each of the three variables in the triadic freedom-relation. More precisely, we can see that what they differ over is the extension to be assigned to each of the variables.

Thus, those whom Berlin places in the negative camp typically conceive of the agent as having the same extension as that which it is generally given in ordinary discourse: they tend to think of the agent as an individual human being and as including all of the empirical beliefs and desires of that individual. Those in the so-called positive camp, on the other hand, often depart from the ordinary notion, in one sense imagining the agent as more extensive than in the ordinary notion, and in another sense imagining it as less extensive: they think of the agent as having a greater extension than in ordinary discourse in cases where they identify the agent’s true desires and aims with those of some collectivity of which she is a member; and they think of the agent as having a lesser extension than in ordinary discourse in cases where they identify the true agent with only a subset of her empirical beliefs and desires — i.e., with those that are rational, authentic or virtuous. Secondly, those in Berlin’s positive camp tend to take a wider view of what counts as a constraint on freedom than those in his negative camp: the set of relevant obstacles is more extensive for the former than for the latter, since negative theorists tend to count only external obstacles as constraints on freedom, whereas positive theorists also allow that one may be constrained by internal factors, such as irrational desires, fears or ignorance. And thirdly, those in Berlin’s positive camp tend to take a narrower view of what counts as a purpose one can be free to fulfill. The set of relevant purposes is less extensive for them than for the negative theorists, for we have seen that they tend to restrict the relevant set of actions or states to those that are rational, authentic or virtuous, whereas those in the negative camp tend to extend this variable so as to cover any action or state the agent might desire.

On MacCallum’s analysis, then, there is no simple dichotomy between positive and negative liberty; rather, we should recognize that there is a whole range of possible interpretations or ‘conceptions’ of the single concept of liberty. Indeed, as MacCallum says and as Berlin seems implicitly to admit, a number of classic authors cannot be placed unequivocally in one or the other of the two camps. Locke, for example, is normally thought of as one of the fathers or classical liberalism and therefore as a staunch defender of the negative concept of freedom. He indeed states explicitly that ‘[to be at] liberty is to be free from restraint and violence from others’. But he also says that liberty is not to be confused with ‘license’, and that “that ill deserves the name of confinement which hedges us in only from bogs and precipices” ( Second Treatise , parags. 6 and 57). While Locke gives an account of constraints on freedom that Berlin would call negative, he seems to endorse an account of MacCallum’s third freedom-variable that Berlin would call positive, restricting this variable to actions that are not immoral (liberty is not license) and to those that are in the agent’s own interests (I am not unfree if prevented from falling into a bog). A number of contemporary liberals or libertarians have provided or assumed definitions of freedom that are similarly morally loaded (e.g. Nozick 1974; Rothbard 1982; Bader 2018). This would seem to confirm MacCallum’s claim that it is conceptually and historically misleading to divide theorists into two camps — a negative liberal one and a positive non-liberal one.

To illustrate the range of interpretations of the concept of freedom made available by MacCallum’s analysis, let us now take a closer look at his second variable — that of constraints on freedom.

Advocates of negative conceptions of freedom typically restrict the range of obstacles that count as constraints on freedom to those that are brought about by other agents. For theorists who conceive of constraints on freedom in this way, I am unfree only to the extent that other people prevent me from doing certain things. If I am incapacitated by natural causes — by a genetic handicap, say, or by a virus or by certain climatic conditions — I may be rendered unable to do certain things, but I am not, for that reason, rendered unfree to do them. Thus, if you lock me in my house, I shall be both unable and unfree to leave. But if I am unable to leave because I suffer from a debilitating illness or because a snow drift has blocked my exit, I am nevertheless not unfree, to leave. The reason such theorists give, for restricting the set of relevant preventing conditions in this way, is that they see unfreedom as a social relation — a relation between persons (see Oppenheim 1961; Miller 1983; Steiner 1983; Kristjánsson 1996; Kramer 2003; Morriss 2012; Shnayderman 2013; Schmidt 2016). Unfreedom as mere inability is thought by such authors to be more the concern of engineers and medics than of political and social philosophers. (If I suffer from a natural or self-inflicted inability to do something, should we to say that I remain free to do it, or should we say that the inability removes my freedom to do it while nevertheless not implying that I am un free to do it? In the latter case, we shall be endorsing a ‘trivalent’ conception, according to which there are some things that a person is neither free nor unfree to do. Kramer 2003 endorses a trivalent conception according to which freedom is identified with ability and unfreedom is the prevention (by others) of outcomes that the agent would otherwise be able to bring about.)

In attempting to distinguish between natural and social obstacles we shall inevitably come across gray areas. An important example is that of obstacles created by impersonal economic forces. Do economic constraints like recession, poverty and unemployment merely incapacitate people, or do they also render them unfree? Libertarians and egalitarians have provided contrasting answers to this question by appealing to different conceptions of constraints. Thus, one way of answering the question is by taking an even more restrictive view of what counts as a constraint on freedom, so that only a subset of the set of obstacles brought about by other persons counts as a restriction of freedom: those brought about intentionally . In this case, impersonal economic forces, being brought about unintentionally, do not restrict people’s freedom , even though they undoubtedly make many people unable to do many things. This last view has been taken by a number of market-oriented libertarians, including, most famously, Friedrich von Hayek (1960, 1982), according to whom freedom is the absence of coercion, where to be coerced is to be subject to the arbitrary will of another. (Notice the somewhat surprising similarity between this conception of freedom and the republican conception discussed earlier, in section 3.2) Critics of libertarianism, on the other hand, typically endorse a broader conception of constraints on freedom that includes not only intentionally imposed obstacles but also unintended obstacles for which someone may nevertheless be held responsible (for Miller and Kristjánsson and Shnayderman this means morally responsible; for Oppenheim and Kramer it means causally responsible), or indeed obstacles created in any way whatsoever, so that unfreedom comes to be identical to inability (see Crocker 1980; Cohen 2011, pp. 193–97; Sen 1992; Van Parijs 1995; Garnett forthcoming).

This analysis of constraints helps to explain why socialists and egalitarians have tended to claim that the poor in a capitalist society are as such unfree, or that they are less free than the rich, whereas libertarians have tended to claim that the poor in a capitalist society are no less free than the rich. Egalitarians typically (though do not always) assume a broader notion than libertarians of what counts as a constraint on freedom. Although this view does not necessarily imply what Berlin would call a positive notion of freedom, egalitarians often call their own definition a positive one, in order to convey the sense that freedom requires not merely the absence of certain social relations of prevention but the presence of abilities, or what Amartya Sen has influentially called ‘capabilities’ (Sen 1985, 1988, 1992; Nussbaum 2006, 2011). (Important exceptions to this egalitarian tendency to broaden the relevant set of constraints include those who consider poverty to indicate a lack of social freedom (see sec. 3.1, above). Steiner (1994), grounds a left-libertarian theory of justice in the idea of an equal distribution of social freedom, which he takes to imply an equal distribution of resources.)

We have seen that advocates of a negative conception of freedom tend to count only obstacles that are external to the agent. Notice, however, that the term ‘external’ is ambiguous in this context, for it might be taken to refer either to the location of the causal source of an obstacle or to the location of the obstacle itself. Obstacles that count as ‘internal’ in terms of their own location include psychological phenomena such as ignorance, irrational desires, illusions and phobias. Such constraints can be caused in various ways: for example, they might have a genetic origin, or they might be brought about intentionally by others, as in the case of brainwashing or manipulation. In the first case we have an internal constraint brought about by natural causes, and in this sense ‘internally’; in the second, an internal constraint intentionally imposed by another human agent, and in this sense ‘externally’.

More generally, we can now see that there are in fact two different dimensions along which one’s notion of a constraint might be broader or narrower. A first dimension is that of the source of a constraint — in other words, what it is that brings about a constraint on freedom. We have seen, for example, that some theorists include as constraints on freedom only obstacles brought about by human action, whereas others also include obstacles with a natural origin. A second dimension is that of the type of constraint involved, where constraint-types include the types of internal constraint just mentioned, but also various types of constraint located outside the agent, such as physical barriers that render an action impossible, obstacles that render the performance of an action more or less difficult, and costs attached to the performance of a (more or less difficult) action. The two dimensions of type and source are logically independent of one another. Given this independence, it is theoretically possible to combine a narrow view of what counts as a source of a constraint with a broad view of what types of obstacle count as unfreedom-generating constraints, or vice versa . As a result, it is not clear that theorists who are normally placed in the ‘negative’ camp need deny the existence of internal constraints on freedom (see Kramer 2003; Garnett 2007).

To illustrate the independence of the two dimensions of type and source, consider the case of the unorthodox libertarian Hillel Steiner (1974–5, 1994). On the one hand, Steiner has a much broader view than Hayek of the possible sources of constraints on freedom: he does not limit the set of such sources to intentional human actions, but extends it to cover all kinds of human cause, whether or not any humans intend such causes and whether or not they can be held morally accountable for them, believing that any restriction of such non-natural sources can only be an arbitrary stipulation, usually arising from some more or less conscious ideological bias. On the other hand, Steiner has an even narrower view than Hayek about what type of obstacle counts as a constraint on freedom: for Steiner, an agent only counts as unfree to do something if it is physically impossible for her to do that thing. Any extension of the constraint variable to include other types of obstacle, such as the costs anticipated in coercive threats, would, in his view, necessarily involve a reference to the agent’s desires, and we have seen (in sec. 2) that for those liberals in the negative camp there is no necessary relation between an agent’s freedom and her desires. Consider the coercive threat ‘Your money or your life!’. This does not make it impossible for you to refuse to hand over your money, only much less desirable for you to do so. If you decide not to hand over the money, you will suffer the cost of being killed. That will count as a restriction of your freedom, because it will render physically impossible a great number of actions on your part. But it is not the issuing of the threat that creates this unfreedom, and you are not unfree until the sanction (described in the threat) is carried out. For this reason, Steiner excludes threats — and with them all other kinds of imposed costs — from the set of obstacles that count as freedom-restricting. This conception of freedom derives from Hobbes ( Leviathan , chs. 14 and 21), and its defenders often call it the ‘pure’ negative conception (M. Taylor 1982; Steiner 1994; Carter and Kramer 2008) to distinguish it from those ‘impure’ negative conceptions that make at least minimal references to the agent’s beliefs, desires or values.

Steiner’s account of the relation between freedom and coercive threats might be thought to have counterintuitive implications, even from the liberal point of view. Many laws that are normally thought to restrict negative freedom do not physically prevent people from doing what is prohibited, but deter them from doing so by threatening punishment. Are we to say, then, that these laws do not restrict the negative freedom of those who obey them? A solution to this problem may consist in saying that although a law against doing some action, x , does not remove the freedom to do x , it nevertheless renders physically impossible certain combinations of actions that include doing x and doing what would be precluded by the punishment. There is a restriction of the person’s overall negative freedom — i.e. a reduction in the overall number of act-combinations available to her — even though she does not lose the freedom to do any specific thing taken in isolation (Carter 1999).

The concept of overall freedom appears to play an important role both in everyday discourse and in contemporary political philosophy. It is only recently, however, that philosophers have stopped concentrating exclusively on the meaning of a particular freedom — the freedom to do or become this or that particular thing — and have started asking whether we can also make sense of descriptive claims to the effect that one person or society is freer than another, or of liberal normative claims to the effect that freedom should be maximized or that people should enjoy equal freedom or that they each have a right to a certain minimum level of freedom. The literal meaningfulness of such claims depends on the possibility of gauging degrees of overall freedom, sometimes comparatively, sometimes absolutely.

Theorists disagree, however, about the importance of the notion of overall freedom. For some libertarian and liberal egalitarian theorists, freedom is valuable as such. This suggests that more freedom is better than less (at least ceteris paribus ), and that freedom is one of those goods that a liberal society ought to distribute in a certain way among individuals. For other liberal theorists, like Ronald Dworkin (1977, 2011) and the later Rawls (1991), freedom is not valuable as such, and all claims about maximal or equal freedom ought to be interpreted not as literal references to a scalar good called ‘liberty’ but as elliptical references to the adequacy of lists of certain particular liberties, or types of liberties, selected on the basis of values other than liberty itself. Generally speaking, only the first group of theorists finds the notion of overall freedom interesting.

The theoretical problems involved in measuring overall freedom include that of how an agent’s available actions are to be individuated, counted and weighted, and that of comparing and weighting different types (but not necessarily different sources) of constraints on freedom (such as physical prevention, punishability, threats and manipulation). How are we to make sense of the claim that the number of options available to a person has increased? Should all options count for the same in terms of degrees of freedom, or should they be weighted according to their importance in terms of other values? If the latter, does the notion of overall freedom really add anything of substance to the idea that people should be granted those specific freedoms that are valuable? Should the degree of variety among options also count? And how are we to compare the unfreedom created by the physical impossibility of an action with, say, the unfreedom created by the difficulty or costliness or punishability of an action? It is only by comparing these different kinds of actions and constraints that we shall be in a position to compare individuals’ overall degrees of freedom. These problems have been addressed, with differing degrees of optimism, not only by political philosophers (Steiner 1983; Carter 1999; Kramer 2003; Garnett 2016; Côté 2020; Carter and Steiner 2021) but also by social choice theorists interested in finding a freedom-based alternative to the standard utilitarian or ‘welfarist’ framework that has tended to dominate their discipline (e.g. Pattanaik and Xu 1991, 1998; Hees 2000; Sen 2002; Sugden 1998, 2003, 2006; Bavetta 2004; Bavetta and Navarra 2012, 2014).

MacCallum’s framework is particularly well suited to the clarification of such issues. For this reason, theorists working on the measurement of freedom tend not to refer a great deal to the distinction between positive and negative freedom. This said, most of them are concerned with freedom understood as the availability of options. And the notion of freedom as the availability of options is unequivocally negative in Berlin’s sense at least where two conditions are met: first, the source of unfreedom is limited to the actions of other agents, so that natural or self-inflicted obstacles are not seen as decreasing an agent’s freedom; second, the actions one is free or unfree to perform are weighted in some value-neutral way, so that one is not seen as freer simply because the options available to one are more valuable or conducive to one’s self-realization. Of the above-mentioned authors, only Steiner embraces both conditions explicitly. Sen rejects both of them, despite not endorsing anything like positive freedom in Berlin’s sense.

We began with a simple distinction between two concepts of liberty, and have progressed from this to the recognition that liberty might be defined in any number of ways, depending on how one interprets the three variables of agent, constraints, and purposes. Despite the utility of MacCallum’s triadic formula and its strong influence on analytic philosophers, however, Berlin’s distinction remains an important point of reference for discussions about the meaning and value of political and social freedom. Are these continued references to positive and negative freedom philosophically well-founded?

It might be claimed that MacCallum’s framework is less than wholly inclusive of the various possible conceptions of freedom. In particular, it might be said, the concept of self-mastery or self-direction implies a presence of control that is not captured by MacCallum’s explication of freedom as a triadic relation. MacCallum’s triadic relation indicates mere possibilities . If one thinks of freedom as involving self-direction, on the other hand, one has in mind an exercise-concept of freedom as opposed to an opportunity-concept (this distinction comes from C. Taylor 1979). If interpreted as an exercise concept, freedom consists not merely in the possibility of doing certain things (i.e. in the lack of constraints on doing them), but in actually doing certain things in certain ways — for example, in realizing one’s true self or in acting on the basis of rational and well-informed decisions. The idea of freedom as the absence of constraints on the realization of given ends might be criticised as failing to capture this exercise concept of freedom, for the latter concept makes no reference to the absence of constraints.

However, this defence of the positive-negative distinction as coinciding with the distinction between exercise- and opportunity-concepts of freedom has been challenged by Eric Nelson (2005). As Nelson points out, most of the theorists that are traditionally located in the positive camp, such as Green or Bosanquet, do not distinguish between freedom as the absence of constraints and freedom as the doing or becoming of certain things. For these theorists, freedom is the absence of any kind of constraint whatsoever on the realization of one’s true self (they adopt a maximally extensive conception of constraints on freedom). The absence of all factors that could prevent the action x is, quite simply, equivalent to the realization of x . In other words, if there really is nothing stopping me from doing x — if I possess all the means to do x , and I have a desire to do x , and no desire, irrational or otherwise, not to do x — then I do x . An equivalent way to characterize the difference between such positive theorists and the so-called negative theorists of freedom lies in the degree of specificity with which they describe x . For those who adopt a narrow conception of constraints, x is described with a low degree of specificity ( x could be exemplified by the realization of any of a large array of options); for those who adopt a broad conception of constraints, x is described with a high degree of specificity ( x can only be exemplified by the realization of a specific option, or of one of a small group of options).

What perhaps remains of the distinction is a rough categorization of the various interpretations of freedom that serves to indicate their degree of fit with the classical liberal tradition. There is indeed a certain family resemblance between the conceptions that are normally seen as falling on one or the other side of Berlin’s divide, despite there being some uncertainty about which side to locate certain particular conceptions. One of the decisive factors in determining this family resemblance is the theorist’s degree of concern with the notion of the self. Those on the ‘positive’ side see questions about the nature and sources of a person’s beliefs, desires and values as relevant in determining that person’s freedom, whereas those on the ‘negative’ side, being more faithful to the classical liberal tradition, tend to consider the raising of such questions as in some way indicating a propensity to violate the agent’s dignity or integrity. One side takes a positive interest in the agent’s beliefs, desires and values, while the other recommends that we avoid doing so.

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Personal Liberty Essay – Roe v. Wade (1973)

by Dennis Goldford, Ph.D.

In American constitutional law the phrase “right to privacy” refers not to questions of information and secrecy, but rather to the idea that government has no authority to interfere with the right of individuals to make their own decisions about intimately personal, fundamental matters like marriage, sexual activity, and child rearing. Though controversial, the right to privacy developed because of, and must be understood in terms of, two important questions in our constitutional system: first, how are individual rights protected against government, and, second, what individual rights are protected against government?

Prior to the adoption of the Fourteenth Amendment, individuals had no federal protection against actions of their own state governments. In American constitutional law the phrase “right to privacy” refers not to questions of information and secrecy, but rather to the idea that government has no authority to interfere with the right of individuals to make their own decisions about intimately personal, fundamental matters like marriage, sexual activity, and child rearing. Though controversial, the right to privacy developed because of, and must be understood in terms of, two important questions in our constitutional system: first, how are individual rights protected against government, and, second, what individual rights are protected against government? Prior to the adoption of the Fourteenth Amendment in 1868, the rights of Americans were protected (beyond a few provisions of Article I, Section 10, of the Constitution and the mechanisms of separation of powers and federalism) in three principal ways. First, individuals were protected against certain actions of the federal government by the Bill of Rights. Second, individuals were protected against certain actions of their own state governments by a bill of rights or other such provisions in the constitution of their state. Third, individuals traveling to a state other than their own were protected against certain actions of that state government by certain provisions of Article IV of the Constitution. The key point is that, at that time, individuals had no federal protection against actions of their own state governments, because the Supreme Court held in Barron v. City of Baltimore (1833) that the Bill of Rights applied to federal actions only—not to state actions. As the Court stated in Twining v. New Jersey (1908), “the first ten Amendments of the Federal Constitution are restrictive only of national action.”

Due to doubts about the constitutionality of the Civil Rights Act of 1866, which provided for federal protection for the newly freed slaves against the southern state governments, the Fourteenth Amendment was ratified in 1868 and stated, in part: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The Supreme Court held in the Slaughter House Cases that the Privileges or Immunities Clause of the Fourteenth Amendment did not now make the protections of the Bill of Rights applicable against state governments in defense of fundamental individual rights. Nevertheless, many justices believed that the Fourteenth Amendment does in fact establish a basket of fundamental rights grounded in the U.S. Constitution to be protected against state infringement. Increasingly, the Supreme Court came to argue that the idea of liberty mentioned in the Due Process Clause of the Fourteenth Amendment provides the textual basis for this basket of protected fundamental rights.

Prior to the adoption of the Fourteenth Amendment, individuals had no federal protection against actions of their own state governments.

If the Due Process Clause answers the question of how fundamental individual rights are protected by the Constitution against state governments, the other question became more problematic: what fundamental individual rights are protected by the Constitution against state governments? In other words, how do we know what rights are contained in that federally guaranteed basket? One answer, suggested in the late nineteenth century and supported most prominently by Justice Hugo Black in the twentieth, is that any and all rights protected against federal infringement by the Bill of Rights are protected against state infringement by the Due Process Clause of the Fourteenth Amendment. However, the Supreme Court as a whole has never accepted this argument. Rejecting it for the Court in Palko v. Connecticut (1937), Justice Benjamin Cardozo wrote: “Whatever would be a violation of the original bill of rights (Amendments one to eight) if done by the federal government is now equally unlawful by force of the Fourteenth Amendment if done by a state. There is no such general rule.” The question remains, therefore: how do we determine what fundamental individual rights are protected by the Constitution against state governments?

Justice Cardozo went on to suggest two criteria for making that determination: a right is contained in that federally guaranteed basket of rights protected against state infringement if it is “implicit in the concept of ordered liberty” or is, citing another case, a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental” ( Palko ). This allowed for substantial overlap between the Bill of Rights and the Due Process Clause, for the Court came to see many of the rights protected against federal infringement by the Bill of Rights as protected against state infringement by the Due Process Clause because they satisfied either or both of these two criteria. Still, the Court’s acceptance of these two criteria in many ways simply shifted rather than solved the initial problem. How do we know if a right is one protected by the Due Process Clause? How do we then know when a right is “implicit in the concept of ordered liberty” or is a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental”?

The problem here is that, in the absence of specific words in a written text, it appears quite difficult to get people to agree on what rights are part of ordered liberty or even on what rights are fundamental in our political and legal traditions. On the one hand, we do not want to claim more rights than are permissible, because asserting a right means limiting majority rule. On the other hand, if we want to defer to the preferences of a popular majority we run the risk of allowing that majority to infringe on individual rights that it really should not endanger. This is why the right to privacy is so controversial, for people disagree about whether it exists and, if it does, about what it protects. Thus, in Griswold v. Connecticut (1965), Justice William Douglas wrote with regard to marriage: “We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system,” whereas Justice Black wrote: “I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.”

To be sure, also writing in Griswold , Justice Arthur Goldberg argued, “The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments” (488). Nevertheless, almost no one either before or after Griswold appealed to the Ninth Amendment to justify the protection of an unenumerated— unmentioned—right. Thus, in Roe v. Wade , Justice Harry Blackmun stated: “This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” Whether one favors or opposed a right to abortion, it is clear that Justice Blackmun neglected to do the hard work here of dealing with the difficult interpretive questions we have raised. Specifically, why does abortion fall within the right to privacy? (Indeed, appealing to the other criterion, the dissenters in Roe argued that a right to abortion is not a principle of justice grounded in American traditions.) Why, as in the case of Lawrence v. Texas, do homosexual relations fall within the right to privacy?

We could say, of course, that there is no such thing as a right to privacy in the Constitution, because there is no blackletter textual provision containing those words. If we were to say this, however, we would have to remember that there is no black-letter text that provides for either the presumption of innocence or the power of judicial review, both of which are conventionally considered to be in the Constitution. Additionally, we would have to address what is perhaps the central question about the protection of individual rights in our constitutional system: do we have a right to make our own decisions about certain personal and even intimate matters that we consider absolutely fundamental to our identity and sense of self in the absence of an explicit, black-letter text in the Constitution that protects any such right? Long ago, in the case of Calder v. Bull, Justice Samuel Chase wrote: “I cannot subscribe to the omnipotence of a State Legislature, or that it is absolute and without controul; although its authority should not be expressly restrained by the Constitution, or fundamental law, of the State.” As you read and think about the following materials on the right to privacy, ask yourself whether you agree or disagree with Justice Chase.

Dr. Dennis Goldford is Professor of Politics and International Relations at Drake University in Iowa. He teaches in the areas of political theory and constitutional law, and his recent research deals with the originalism debate in contemporary constitutional theory. He has published numerous articles in the areas of political theory and constitutional interpretation, and his recent book is entitled The American Constitution and the Debate Over Originalism (Cambridge, 2005). His current research deals with politics and religion, and with the theory of federalism. Professor Goldford is also a frequent commentator on Iowa and national politics through both local and national media outlets.

The Paradox of Freedom: who Owns Free People?

This essay is about the paradox of freedom and who owns free people. It examines how true freedom is often limited by various influences such as government laws, economic systems, and social norms. While individuals may seem free, their actions and decisions are shaped by these external controls. The essay explores how democratic governments, employers, and cultural expectations all exert a form of ownership over individuals. It also touches on the philosophical debate between determinism and free will, highlighting the complexity of defining freedom. Ultimately, the essay invites reflection on the balance between personal liberty and societal structures.

How it works

Within the modern discourse concerning liberty and self-determination, a fundamental inquiry often emerges: to whom do emancipated individuals belong? At initial inspection, this query appears self-contradictory—how can a liberated individual be “possessed”? Nevertheless, this enigma lies at the crux of comprehending the essence of freedom in contemporary society. Exploring this subject necessitates an analysis of the notions of self-governance, societal confines, and the philosophical foundations of genuine autonomy.

Liberty, in its unadulterated form, denotes the absence of external dominion and the capacity to exercise choices according to one’s volition.

However, the veracity of human existence dictates that we seldom, if ever, exist devoid of influences and constraints. From the moment of inception, we are subject to a plethora of communal, cultural, and juridical frameworks that mold our actions and decisions. These frameworks, though often imperative for upholding order and safeguarding rights, concurrently impose limitations on individual liberty. Consequently, the possession of emancipated individuals becomes a question of who or what exercises sway over them.

In democratic polities, the notion of liberty is intimately linked to the governance of law and the social pact. Citizens are deemed liberated insofar as they possess a voice in the statutes that govern them and the leaders who enforce these statutes. Yet, this liberty is not absolute. Governments, even in the most democratic realms, wield substantial authority over their populace. Statutes and regulations, while crafted to preserve and enhance the collective welfare, likewise restrict individual endeavors. For example, one cannot act indiscriminately without facing juridical repercussions if said actions transgress upon the rights of others or disrupt societal harmony. Hence, in this context, one could contend that the state, through its legal and institutional mechanisms, exerts a form of dominion over its citizenry.

Furthermore, the notion of dominion over emancipated individuals extends beyond governmental purview to encompass economic and communal dimensions. In capitalist societies, economic liberty is often extolled as a cornerstone of personal autonomy. However, economic structures also engender dependencies and hierarchies that can circumscribe individual liberty. Employers, corporations, and market dynamics exercise substantial control over individuals’ lives, influencing their choices and opportunities. Employment, while serving as a source of sustenance and self-actualization, concurrently places individuals under the aegis of employers, thereby engendering an additional stratum of possession.

Communal norms and cultural anticipations further complicate the concept of liberty. From familial configurations to pedagogical establishments and media influence, individuals are incessantly navigating a labyrinth of communal anticipations that steer their conduct. These societal imperatives can be both empowering and constraining. For instance, cultural mores can furnish a sense of identity and community, yet they can also impose constraints on personal autonomy by dictating acceptable conduct and lifestyles. Thus, the possession of emancipated individuals is also wielded by the societal norms that govern their quotidian existence.

Philosophically, the inquiry of who possesses emancipated individuals delves into the discourse between determinism and free will. Advocates of determinism posit that all actions are preordained by antecedent causes, intimating that liberty is a mirage. Conversely, proponents of free will maintain that individuals possess the capacity to make autonomous decisions. This philosophical dichotomy underscores the intricacy of defining liberty and possession. If our actions are indeed influenced by an array of internal and external factors, then the notion of absolute liberty becomes problematic. Possession, in this context, is diffuse and multilayered, encompassing the myriad forces that mold our choices and actions.

In summation, the possession of emancipated individuals constitutes a multilayered and paradoxical notion. While individuals may harbor a modicum of self-governance, they are inevitably subject to an array of influences and constraints that shape their liberty. Governments, economic systems, communal norms, and philosophical deliberations all contribute to delineating the extent of one’s liberty. Grasping this interplay is imperative for comprehending the complexities of human autonomy and the nuanced nature of liberty in contemporary society. Ultimately, the query of who possesses emancipated individuals beckons us to contemplate the equilibrium between individual liberty and the structures that regulate our existence, urging us to perpetually pursue a deeper and more equitable comprehension of liberty.

Recall, this exposition serves as a springboard for inspiration and further exploration. For tailored guidance and to ensure adherence to scholarly standards, contemplate engaging professionals at EduBirdie.

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The False Eloquence of Identity Politics

Vico’s theory of civilization is borne out by today's language of identity politics.

The Italian Enlightenment thinker Giambattista Vico, who is often said to be the father of the philosophy of history, studied cycles of civilizations of the past. He observed that the rise of civilizations is marked by an evolution in communication, from mute religious acts to visual symbology to, finally, language, which allows laws to be articulated. Civilizational decline, on the other hand, is marked by an abuse of words and laws. In his New Science , Vico wrote that a “false eloquence” permeated the decline of Classical and Renaissance civilizations:

Yet when democracy grew corrupt, so did philosophy, which sank into skepticism. Learned fools took to maligning the truth. … People now misused eloquence. … Like furious winds lashing the sea, they stirred up civil wars in their republics and reduced them to utter chaos. Thus the state fell from its perfect liberty into the perfect tyranny of anarchy, or the unbridled liberty of the free peoples, which is the worst of all tyrannies.

A professor of rhetoric and law in Naples, Vico believed that language and laws represented the height of cultural achievement. He thought language and laws were a way of conveying senso commune , common sense, and piety, which he held to be the fundamental civilizing forces that pull humans out of barbarism. Vico believed that, when used honestly and properly, language and laws extend the radius of common sense and piety from the few to the many; but in times of cultural decline, they increasingly come to work against common sense and piety, rather than in support of them. Words originally designed as vessels for carrying truths are hollowed out, and new false meanings are inserted. Language is twisted to deceive—until deception becomes the norm. Today, Vico’s theory is born out by the language of identity politics. It starts by hollowing out the word identity itself. Identity politics discards the human identity that unites everyone. It does not acknowledge the common-sense reality that we all share a common human nature, which leaves the illusion that finding common ground is impossible. Real individuals are treated as instantiations of abstract categories, walking chunks of whiteness and blackness, masculinity and femininity, oppression and victimhood, not real embodied individuals with unique minds, bodies, souls, and personal agency.

To add force to the “furious winds lashing the sea,” as Vico might put it, identity politics constructs epithets to praise and blame group identities. These ascribe some combination of stain, contamination, suspiciousness, malevolence, and abnormality. There are Churchill’s “foul” Hindus, Trump’s “shithole countries,” Joe Biden’s blacks who “ain’t black” because they did not vote for him, and wokeism’s “toxic masculinity” and “toxic whiteness.” If someone believes that kids should not be using puberty-blocking drugs, they must be “transphobic,” i.e. they must have a phobia, a mental disorder. Each of these terms defies common sense—which, again, Vico found to be one of the hallmarks of civilization—by equating superficial, incidental traits with some combination of guilt/wrongdoing/contamination. But this equation is absurd, as incidental traits are properties of a thing, not entities in themselves. A skin color does not have moral agency. Identity politics then redefines the words we use for relationships among group identities. A good example is the woke mantra “diversity, equity, and inclusion,” or DEI. Of the infinite possible meanings of diversity, successful societies have embraced the common-sense diversity that Aristotle said was necessary for a flourishing community: a diversity of virtues, i.e. a variety of people who bring excellence in many areas, to make a society well-rounded, whole, and complete. Wokeism replaces the societal aim of a diversity of virtues with the aim of a diversity of group identity affiliations. This automatically ensures that excellence suffers. As Joshua Mitchell alludes to in American Awakening: Identity Politics and Other Afflictions of Our Time , wokeism redefines an individual’s contribution to “diversity” according to how distant their group identity is from the heterosexual white male. As the universal oppressor identity, heterosexual white men are dogmatically assumed to contribute zero to diversity, other than self-condemnation and acting as an “ally” for other identity groups. The term “BIPOC” (black, indigenous, and people of color) serves as a euphemism for “anything but white.”

As Vico outlined, identity politics uses words in false and malignant ways to undermine the institutions of society.

One result of this redefinition of diversity is Brown University, a bastion of DEI where 57 percent of students are BIPOC, compared to 36 percent BIPOC in the US population, and 38 percent of students identify as LGBTQ+, over five times the percentage among adults. At Brown, it seems the operating equation is

diversity = (BIPOC + LGBTQ+) – (white + heterosexual + male)

Again, when diversity is redefined to mean a diversity of group affiliations rather than a diversity of virtues, excellence must suffer. Indeed, the excellence of Brown’s viewpoint diversity—a cornerstone of the idea of the university—now approaches zero on the Kelvin scale. Brown Federalist Society founder Thomas Bickel called out his school for failing at using diversity and inclusion to promote excellence:

Brown’s chronic lack of countervailing viewpoints both within the student body and among faculty is unbecoming of an institution supposedly committed to diversity and inclusion. Put differently, it is difficult to understand how students could possibly receive a well-rounded education at Brown when the College’s [left-leaning] faculty and student body are almost all in ideological lockstep with one another.

Ironically, as Bickel points out, Brown’s redefinition of “diversity” has created homogeneity among viewpoints at Brown, defeating the university’s fundamental purpose as a place to exchange diverse ideas.

DEI also hollows out and redefines “equity.” In Nicomachean Ethics , Aristotle defines equity as the practice of making an exception to a rule that makes the outcome more just, in situations when a rule is too general to fit the particulars of a case. Laws are by nature general, says Aristotle. Life is too complex and dynamic for lawmakers to foresee and include all the possibilities. This does not mean that laws are bad, Aristotle emphasizes, but it does mean that some cases will inevitably fall through the cracks in the laws. When they do, equity is the attempt to make things right. Examples of Aristotelian equity are so prevalent in America that we often take them for granted. For example, in K-12 schools, ESL track classes and special education embody Aristotelian equity. Having taught in China and six other countries, I can attest that many parents in foreign countries send their kids to American international schools hoping they will be more equitable toward their child’s special needs than local schools. But what wokeism means by equity is destroying the rule, not making exceptions to it. For example, traditional equity would mean seeking exceptions to standard education that can boost lower-performing students to help them catch up and reach the level required for college admissions or APs, such as additional resources, tutoring, and supplemental courses. And traditional equity could also mean providing quality non-AP courses for students who do not qualify for AP or are not interested, so that they too can attain the highest level of education possible. Either of these options is in line with the essential aim of education itself, which is to raise students’ academic achievement. Woke equity is the opposite. Rather than seek exceptions that help those who fell through the cracks reach the goal, it destroys the original goal and makes the exception into the rule. This can be seen in schemes to allow significantly underprepared students to be admitted to colleges or take AP classes , setting up both students and schools for frustration and failure. And it can be seen in high schools removing AP classes or calculus, or in Princeton’s move to remove the Greek and Latin language requirement for majors in Classics. Under the pretense of closing the “equity gap,” all these measures lower, not raise, academic achievement. In short, equity was all around us long before woke equity attempted to redefine the term and monopolize its use. Rather than do the hard work of finding and implementing exceptions that help raise students up to the standard, woke equity strips society of its standards and calls it progress. And among the other terms identity politics hollows out and redefines is “inclusion.” Identity politics movements couch themselves in the inclusive language of unity, from the white supremacist “Unite the Right” rally to the Marxist slogan “Workers of the World, Unite!” to the radical left’s “Diversity, Equity, and Inclusion.” But in reality, all of these movements are fundamentally about excluding and demonizing some “oppressor” group, and thus they only deepen and entrench divisions in society. As Vico outlined, identity politics uses words in false and malignant ways to undermine the institutions of society. It uses words to radicalize factions and foment civil discord. This works especially well at universities, where using words at a high level is a fundamental tool of the trade of teaching. We have to recognize the importance of getting words right, because, as Vico pointed out, civilization depends on it. We have to take words back from movements that trade on false eloquence. As New York City mayor Eric Adams recently said of the Pro-Palestine protests at Columbia, “There is a movement to radicalize young people, and I’m not going to wait until it’s done and all of a sudden acknowledge the existence of it. This is a global problem that young people are being influenced by those who are professionals at radicalizing our children.” The late Jewish civil rights activist Abraham Joshua Herschel said, “There can be no nature without spirit, no world without the Torah, no brotherhood without a father, no humanity without attachment to God.” Identity politics obsesses over brotherhood and is fond of the term “solidarity.” But it has so hollowed out this word, that it never stops to recognize that in uniting identities against other identities, it is uniting brothers against brothers. Bereft of any notion of a common human nature, or the recognition that we are all stained and in need of forgiveness, the only solidarity that identity politics can ever know is a brotherhood without a father.

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Integrating Clinical Trials and Practice : A New JAMA Series and Call for Papers

1 Executive Editor, JAMA
Special Communication The Integration of Clinical Trials With the Practice of Medicine Derek C. Angus, MD, MPH; Alison J. Huang, MD, MAS; Roger J. Lewis, MD, PhD; Amy P. Abernethy, MD, PhD; Robert M. Califf, MD; Martin Landray, PhD; Nancy Kass, ScD; Kirsten Bibbins-Domingo, PhD, MD, MAS; JAMA Summit on Clinical Trials Participants; Ali B Abbasi; Kaleab Z Abebe; Amy P Abernethy; Stacey J. Adam; Derek C Angus; Jamy Ard; Rachel A Bender Ignacio ; Scott M Berry; Deepak L. Bhatt; Kirsten Bibbins-Domingo; Robert O. Bonow; Marc Bonten; Sharon A. Brangman; John Brownstein; Melinda J. B. Buntin; Atul J Butte; Robert M. Califf; Marion K Campbell; Anne R. Cappola; Anne C Chiang; Deborah Cook; Steven R Cummings; Gregory Curfman; Laura J Esserman; Lee A Fleisher; Joseph B Franklin; Ralph Gonzalez; Cynthia I Grossman; Tufia C. Haddad; Roy S. Herbst; Adrian F. Hernandez; Diane P Holder; Leora Horn; Grant D. Huang; Alison Huang; Nancy Kass; Rohan Khera; Walter J. Koroshetz; Harlan M. Krumholz; Martin Landray; Roger J. Lewis; Tracy A Lieu; Preeti N. Malani; Christa Lese Martin; Mark McClellan; Mary M. McDermott; Stephanie R. Morain; Susan A Murphy; Stuart G Nicholls; Stephen J Nicholls; Peter J. O'Dwyer; Bhakti K Patel; Eric Peterson; Sheila A. Prindiville; Joseph S. Ross; Kathryn M Rowan; Gordon Rubenfeld; Christopher W. Seymour; Rod S Taylor; Joanne Waldstreicher; Tracy Y. Wang JAMA
Viewpoint Why Should the FDA Focus on Pragmatic Clinical Research? Ali B. Abbasi, MD; Lesley H. Curtis, PhD; Robert M. Califf, MD JAMA

Randomized clinical trials remain the cornerstone of evidence-based medicine. As a leading medical journal publishing the science that advances the clinical care of patients and the health of the public, JAMA is committed to the publication of clinical trials, as well as promoting the discourse on how clinical trial evidence can best serve the needs of patients and clinicians.

In autumn of 2023, JAMA hosted its inaugural in-person JAMA Summit 1 on the topic of randomized clinical trials and the challenges and opportunities to improve their design and conduct to be most responsive to the needs of clinical practice. The Special Communication published in JAMA, 2 “The Integration of Clinical Trials With the Practice of Medicine: Repairing a House Divided,” was written on behalf of the participants in the JAMA Summit and outlines many of the themes discussed during this provocative 2-day meeting.

A central theme of the JAMA Summit, which is elaborated on in the Special Communication in this issue, is how best to integrate clinical trials with clinical practice. Traditionally, clinical trialists and clinicians have worked independently, and, as the authors of the Special Communication underscore, their separate missions, incentives, and infrastructures have been siloed. The result is inefficiency in the performance of trials and limitations in their scope and impact. The authors offer solutions, including advances in implementation science, novel approaches to statistical analysis of trial data, and integration of trials with the electronic health record as a very rich source of clinical data. The clinical trial and health care delivery disciplines have functioned as a house divided. The authors proffer an approach to bridging the gap.

The future of clinical medicine will be greatly influenced by the data derived from randomized clinical trials, and trials will need to be accomplished more quickly, efficiently, and cheaply than they are today. A recent example is the platform trials 3 that were conducted during the COVID-19 pandemic. 4 - 6 These trials were embedded within clinical care and permitted the study of multiple therapeutic interventions simultaneously, with the results applicable to patient care in short order. The platform trials are exemplary of the types of novel approaches to clinical trials that are needed to realign the house divided.

With this Special Communication and an accompanying Viewpoint, 7 we launch a new series in JAMA— Integrating Clinical Trials and Practice. JAMA invites submissions that explore innovations in clinical trial design, implementation, funding, regulation, education, and application that may bring randomized trial evidence to more effectively address the needs in clinical practice. Our goal is to engage the research community in a significant publishing project to advance clinical trials and better align them with clinical practice. We welcome articles of any type, and we are happy to hear from you with presubmission inquiries. We are eager to chart a new path for randomized clinical trials and the delivery of health care, and we hope you will participate in navigating the road ahead.

Published Online: June 3, 2024. doi:10.1001/jama.2024.10266

Corresponding Author: Greg Curfman, MD, JAMA, Editorial Office, 330 N Wabash Ave, Chicago, IL 60611 ( [email protected] ).

Conflict of Interest Disclosures: None reported.

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Curfman G. Integrating Clinical Trials and Practice : A New JAMA Series and Call for Papers . JAMA. Published online June 03, 2024. doi:10.1001/jama.2024.10266

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Trump found guilty: Read the court transcript of the hush money trial's final day

History was made Thursday afternoon when a Manhattan jury handed down a guilty verdict to former president Donald Trump .

Judge Juan Merchan was poised to dismiss the jury for the evening on their second day of deliberating when he received the note.

The jury found Trump guilty of 34 counts of falsifying business records to disguise the hush money payment issued to porn star Stormy Daniels ahead of the 2016 election as legal expenses. Trump is expected to appeal the decision .

Cameras were not allowed in the courtroom, but you can experience the historic moment through court transcripts :

Understanding the verdict: What was Trump found guilty of? See the 34 business records the jury decided he falsified

Prep for the polls: See who is running for president and compare where they stand on key issues in our Voter Guide

Read Trump trial transcript of guilty verdict proceedings

You can read all testimony transcripts on the New York Court media website .

Trump found guilty: Catch up on the trial's sex stories, secret tapes and court drama

See the first verdict sheet of a former president

What's next for donald trump.

Judge Juan Merchan has scheduled Trump's sentencing for July 11, and Trump is out free until then.

Because this is Trump's first felony offense, his sentence is likely to be as light as probation or home confinement. If he does receive a prison sentence , it would probably be less than a year.

Trump is also likely to appeal the conviction, further pushing down any chance he serves jailtime before the election.

Contributing: Aysha Bagchi

Read the Verdict Sheet in the Trump Manhattan Criminal Trial

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Former President Donald J. Trump was convicted on Thursday on all 34 counts of falsifying business records by a jury of 12 New Yorkers, who deliberated over two days.

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Verdict Sheet SUPREME COURT OF THE STATE OF NEW YORK PART 59 THE PEOPLE OF THE STATE OF NEW YORK COUNTY NEW YORK INDICTMENT No. 71543-23 against JUSTICE JUAN MERCHAN DATE 05/29/2024 DONALD J. TRUMP Defendant COUNT NUMBER CRIME GUILTY NOT GUILTY 1 FALSIFYING BUSINESS RECORDS -1ST DEGREE (Invoice: 2/14/17; $70,000) ✓ 2 FALSIFYING BUSINESS RECORDS -1ST DEGREE (Voucher No. 842457; $35,000) 3 FALSIFYING BUSINESS RECORDS -1ST DEGREE (Voucher No. 842460; $35,000) 4 FALSIFYING BUSINESS RECORDS -1ST DEGREE (Check No. 000138; $70,000) ✓ 5 FALSIFYING BUSINESS RECORDS -1ST DEGREE (Invoice: 3/16/17; $35,000) 6 FALSIFYING BUSINESS RECORDS -1ST DEGREE (Voucher No. 846907) ✓ 7 FALSIFYING BUSINESS RECORDS -1ST DEGREE (Check No. 000147; $35,000) ✓ 8 FALSIFYING BUSINESS RECORDS - 1ST DEGREE (Invoice: 4/13/17; $35,000) 9 FALSIFYING BUSINESS RECORDS - 1ST DEGREE (Voucher No. 858770) ✓ 10 FALSIFYING BUSINESS RECORDS -1ST DEGREE (Check No. 002740; $35,000) ✓ 11 FALSIFYING BUSINESS RECORDS - 1ST DEGREE (Invoice: 5/22/17; $35,000) ✓ 12 FALSIFYING BUSINESS RECORDS -1ST DEGREE (Voucher No. 855331) ADA Juchun Stringlass DC: Emil Boy (543) DATE: 5130124 FOREPERSON: B400 PAGE 1 OF 3

Verdict Sheet SUPREME COURT OF THE STATE OF NEW YORK PART 59 THE PEOPLE OF THE STATE OF NEW YORK COUNTY NEW YORK INDICTMENT No. 71543-23 against JUSTICE JUAN MERCHAN DONALD J. TRUMP DATE 05/29/2024 Defendant COUNT NUMBER CRIME GUILTY NOT GUILTY 13 FALSIFYING BUSINESS RECORDS - 1ST DEGREE (Check No. 002700; $35,000) 14 FALSIFYING BUSINESS RECORDS -1ST DEGREE (Invoice: 6/16/17; $35,000) 15 FALSIFYING BUSINESS RECORDS -1ST DEGREE (Voucher No. 858772) ✓ 16 FALSIFYING BUSINESS RECORDS -1ST DEGREE (Check No. 002741; $35,000) ✓ 17 FALSIFYING BUSINESS RECORDS - 1ST DEGREE (Invoice: 7/11/17; $35,000) 18 FALSIFYING BUSINESS RECORDS -1ST DEGREE (Voucher No. 861096) ✓ 19 FALSIFYING BUSINESS RECORDS -1ST DEGREE (Check No. 002781; $35,000) 20 FALSIFYING BUSINESS RECORDS - 1ST DEGREE (Invoice: 8/1/17; $35,000) ✓ 24 21 FALSIFYING BUSINESS RECORDS -1ST DEGREE (Voucher No. 863641) ✓ 22 22 FALSIFYING BUSINESS RECORDS -1ST DEGREE (Check No. 002821; $35,000) ✓ 23 FALSIFYING BUSINESS RECORDS -1ST DEGREE (Invoice: 9/11/17; $35,000) 24 FALSIFYING BUSINESS RECORDS -1ST DEGREE (Voucher No. 868174) ADA Joshur Steinglass S DC: Emil Bon ✓ DATE: 5/30/24 FOREPERSON: B400 PAGE 2 OF 3

Verdict Sheet SUPREME COURT OF THE STATE OF NEW YORK PART 59 COUNTY NEW YORK THE PEOPLE OF THE STATE OF NEW YORK INDICTMENT No. 71543-23 against JUSTICE JUAN MERCHAN DATE DONALD J. TRUMP 05/29/2024 Defendant COUNT NUMBER CRIME 25 FALSIFYING BUSINESS RECORDS - 1ST DEGREE (Check No. 002908; $35,000) 26 26 FALSIFYING BUSINESS RECORDS -1ST DEGREE (Invoice: 10/18/17; $35,000) GUILTY NOT GUILTY 27 27 FALSIFYING BUSINESS RECORDS -1ST DEGREE (Voucher No. 872654) ✓ 28 FALSIFYING BUSINESS RECORDS -1ST DEGREE (Check No. 002944; $35,000) ✓ 29 29 30 30 31 FALSIFYING BUSINESS RECORDS -1ST DEGREE (Invoice: 11/20/17; $35,000) FALSIFYING BUSINESS RECORDS - 1ST DEGREE (Voucher No. 876511) FALSIFYING BUSINESS RECORDS -1ST DEGREE (Check No. 002980; $35,000) 32 32 FALSIFYING BUSINESS RECORDS -1ST DEGREE (Invoice: 12/1/17; $35,000) ✓ 33 FALSIFYING BUSINESS RECORDS - 1ST DEGREE (Voucher No. 877785) ✓ 34 FALSIFYING BUSINESS RECORDS - 1ST DEGREE (Check No. 003006; $35,000) ADA Jeshun Steinglass DC: Emil Ban FB DATE: 5/30/24 FOREPERSON: B400 PAGE 3 OF 3

Our Coverage of the Trump Hush-Money Trial

Guilty Verdict : Donald Trump was convicted on all 34 counts of falsifying records to cover up a sex scandal that threatened his bid for the White House in 2016, making him the first American president to be declared a felon .

What Happens Next: Trump’s sentencing hearing on July 11 will trigger a long and winding appeals process , though he has few ways to overturn the decision .

Reactions: Trump’s conviction reverberated quickly across the country and around the world . Here’s what voters , New Yorkers , Republicans , Trump supporters and President Biden had to say.

The Presidential Race : The political fallout of Trump’s conviction is far from certain , but the verdict will test America’s traditions, legal institutions and ability to hold an election under historic partisan tension .

Making the Case: Over six weeks and the testimony of 20 witnesses, the Manhattan district attorney’s office wove a sprawling story of election interference and falsified business records.

Legal Luck Runs Out: The four criminal cases that threatened Trump’s freedom had been stumbling along, pleasing his advisers. Then his good fortune expired .

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Concept of Individual Liberty in Society Expository Essay

Introduction

Why is an individual liberty of interest?

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INTRODUCTION. I.

CHAPTER I. INTRODUCTORY.

CHAPTER II. OF THE LIBERTY OF THOUGHT AND DISCUSSION.

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Trump found guilty: Read the court transcript of the hush money trial's final day

Read Trump trial transcript of guilty verdict proceedings

See the first verdict sheet of a former president

Read the Verdict Sheet in the Trump Manhattan Criminal Trial

Download the original document (pdf)

Our Coverage of the Trump Hush-Money Trial

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