The concept of self-ownership, as Mill would have it, at first seems to be the most reasonable and the most commonsensical principle. What follows from his ideas of individual sovereignty surely are attractive, but the coherence of parts of his thought, namely the distinction between private and public acts, as well as the exact, precise definition of harm is questionable.
Mill holds unequivocally to individual sovereignty and negative conceptions of liberty, that is, that man is free to do as he pleases, so long as he does not harm or prejudicially affect the interests of others. Though this at first sounds desirable, there are a number of difficulties highlighted by Patrick Devlin and James Fitzjames Stephen. But first Mill’s doctrine must be further developed. Man must be free from coercion, regardless of whether his life plans seem eccentric or offend our sensibilities. Neither his own harm, nor our perceptions of his actions give us sufficient warrant to force him to do otherwise. Although not yet introduced during his time, Mill would likely find fault with the idea of an autonomous self as distinct from the empirical self. The autonomous self as suspiciously coinciding with the whims of society would be viewed by Mill as having no empirical basis, whatsoever. Moreover, how could it be conclusively shown that one’s autonomous self is vastly different than one’s empirical self? It is extraordinarily difficult given that one’s access to one’s self is incorrigible. If something is good for man’s individual health or morally good, it is still inappropriate to force the individual to conform. He must be free in his speech, his conscience, his choice of life plans, his choices, in general, his freedom of association, etc. He may only be punished if his actions directly harm another.
James Fitzjames Stephen attempts to deduce the consequences which follow from Mill’s harm principle, in order to reduce it to the absurd. Associations could readily form to incite the masses to immoral acts, such as adultery, and a host of other reprehensible acts. Stephen thinks it incomprehensible to think that our judgments could or should be kept to the arena of clucking disapproval at another’s choices or life plans. Instead, he thinks Mill’s position is so artificially contrived as to fall apart when applied to civil society. Is it not self-evident that the men and women with which we are in association everyday not only care very deeply about the content of choices, desires, and passions? Mill appears to conceive of humans as overly dispassionate, but this is not at all the case.
Now it may indeed be true that we ought not to care or ought not to interfere, but even if this were granted, it would not change the fact that people do care and they do interference relentlessly over matters that they think appear to concern them, especially when the negative externalities of X’s actions are unknown. So this autonomous conception of man seems to be false, in that man is not man alone and separate from society. Of course, in order to get around the ambiguity of the world ‘harm,’ Mill claims that the harm in the case of a self-regarding vice must violate a distinct and assignable obligation to another, which is why it could never be said under Mill’s principle that we could punish someone purely for debauchery, for instance. As Stephen’s example goes, the burden of proof, according to Mill, ought to be placed on the accuser to clearly demonstrate that one’s debauchery did indeed violate a distinct and assignable obligation. Suppose that one’s debauchery, for whatever reason, led one to break a contract. That man could thus be punished, but not just for this debauchery alone. Any other course of action would be a violation of liberty.
Stephen simply disagrees. In pointing out that it is impossible to accurately track all violations of distinct and assignable obligation that occur as a result of leaving people to their freedoms, Stephen also states that the law does have an interest in one’s actions not because they have just demonstrably harmed someone, but because the act is wrong in and of itself. And so the difference between these two thinkers occurs over government jurisdiction, over what is deserving of punishment and coercion. Certainly Mill’s autonomous man is false on a practical level, but that alone does not defeat his case for its moral appropriateness.
Devlin’s criticism of Mill, like Stephen’s, focuses on the objective of law and what it ought to be used for. The law, for instance, has never allowed the defense of consent to be used in the its prosecution of morally deviant persons—the idea that consent is enough is spurious, and the idea that one would have to violate a distinct and assignable obligation first before being punished presupposes that only individuals are real entities. The reason one may be punished for moral deviancy, Devlin thinks, is because one commits this crime against society. Consent is irrelevant, then, but not a terrible principle in and of itself; it simply plays no role here in deciding whether an act ought to be punished. In violating the basic moral principles to which a given society holds, an individual is guilty of transgressing against society, and therefore harms it. While Mill’s principle would end a number of crimes and make legal such acts as dueling, incest, suicide, euthanasia, abortion, etc., Devlin holds that the main reason for the existence of the law is to legislate morality. The moral bonds of a society are what permit its continued existence, which is why to allow the flouting of moral standards, whether in public or in private, contributes to the decline of society. Devlin gives the final example of one man getting drunk in his home. Surely that is wrong, but should the law intervene? It may seem heavy-handed and unwarranted, but Devlin asks us to imagine what would happen to the fabric of society if a quarter or half of the population got drunk each night—the very existence of such a society, and consequently one’s ability exercise freedom within it would be gravely threatened.
Both Stephen and Devlin have given good reasons to doubt the coherence of Mill’s harm principle. Man is not autonomous. Men do care very deeply about each other’s affairs, and the negative externalities that result from permitting rampant vice may not be quantifiable until a society falls apart. Furthermore, since the undoubted objective of law is to enforce morality, then the only question left to decide is: how much? As Mill would certainly think of his system as promoting the good and that protection ought to be in place, Devlin’s criticisms do seem to apply if they both agree that morality ought to be legislated. They only disagree on the extent that it ought to be legislated or applied. Given that Mill agrees that he clearly regards some of the listed vices as corrupt and perverse, then he might have to hold that society is a non-existent entity, a non-person, something that is incapable of being harmed or violated. In this case, there is much more to be said, but insofar as the distinction between the public and the private spheres are concerned, as well as other objections offered by Stephen, the coherence of Mill’s position as it now stands seems lacking.