Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, November 29, 2012

Hamburger, John Stuart Mill on Liberty and Control

The historian of political ideas, Joseph Hamburger, who spent nearly all of his long and distinguished professional career in the Yale Department of Political Science, was an expert in 18th, but particularly 19th, century British intellectual history.  My little essays on Sir James Fitzjames Stephen as well as some book-related research on Edmund Burke have brought with them the great good luck of an introduction to the writing of this immensely thoughtful and erudite scholar.  Fairly recently, I picked up Professor Hamburger's book on John Stuart Mill: John Stuart Mill on Liberty and Control (1999).

The thesis of the book is that the strong and unqualified libertarian understanding of Mill -- the view that Mill was an unadulterated champion of freedom for its own sake -- is very much mistaken.  Relying on the major works (the Logic, On Liberty, Utilitarianism, The Subjection of Women, etc.) as well as on many less well-known writings and letters, Hamburger argues that what interested Mill was liberty and control, and fairly substantial and intrusive types of state and social control at that:

[A]n explanation of Mill's overarching argument in On Liberty must explain the coexistence of these two apparently opposite positions.  This is made necessary because the provisions for controls were not small exceptions to a general presumption that in most circumstances an expansive liberty ought to prevail . . . . [T]he range of cases in which [Mill] would punish, his approval of punishments for mere dispositions toward conduct that would injure others, and above all, his explanation of his purposes to [his friend] George Grote indicate that his rationale for liberty in combination with control  requires a different explanation.  It is also necessary to explain how, for Mill, the provisions for both control and liberty were not contradictory, but in fact were compatible means of implementing a coherent plan of moral reform.  (18-19)

Professor Hamburger proceeds in the following chapter to discuss the movement of Mill away from an interest in institutional reform (something which always greatly interested Bentham) toward a more ambitious plan for cultural and moral reform (in tandem with and inspired by his wife, Harriet).  He then spends several very interesting chapters discussing Mill's aim to vanquish Christianity as the de facto social morality and replace it with a "religion of humanity" -- the new moral system which would strike the balance between liberty and control properly:

The real task of religion was to direct emotions and desires away from low objects and to be "paramount over all selfish objects of desire."  Moreover, it ought to make us disinterested: "It carries the thoughts and feelings out of self, and fixes them on an unselfish object, loved and pursued as an end for its own sake."  Christianity, however, in Mill's view, did anything but this:

The religions which deal in promises and threats regarding a future life, do exactly the contrary: they fasten down the thoughts to the person's own posthumous interests; they tempt him to regard the performance of his duties to others mainly as  a means to his personal salvation; and are one of the most serious obstacles to the great purpose of moral culture, the strengthening of the unselfish and the weakening of the selfish element in our nature.  (43, quoting "Utility of Religion")

In this way, Hamburger argues, the real target of Mill's moral reforms was Christianity -- or, perhaps better, the institutions and customs of moral beliefs on which it depended and with which it was allied (see, e.g., Mill's critique of "intuitionism" in the Logic).  This attack did not stand alone; and it certainly did not imply an embrace of freedom full stop (though of course it did imply a certain understanding of liberty).  Rather, it was closely coupled with Mill's vision for a new social and moral order, and Mill believed that the times were ripe for this substitutionary program.  The better faith to follow was the religion of humanity, which Mill discovered in the writing of Auguste Comte.  And here Hamburger points out an interesting feature of Mill's views about the circumstances in which it is advisable to obey authority -- circumstances which depend on the distinction between a "natural" and a "transitional" society:

In natural states of society there is unity, harmony, stability, and, [Mill] implies, contentedness, whereas in transitional states there is disagreement, conflict, discontent, and a restless desire for change.  The shift to a transitional state occurs when there is a disintegration of the institutions at the end of a natural period and arises from doubts about its legitimizing beliefs.  Thus a transitional era occurs when mankind "have outgrown old institutions and old doctrines, and have not yet acquired new ones." . . . .

While the superiority of the natural or organic state of society arose from its harmony and stability, it was also appealing for the role it gave to intellectuals -- those responsible for originating and disseminating opinions and beliefs.  There would be "a body of moral authority" which would rest with those possessing the greatest knowledge and competence.  The opinions originating with such persons would be widely accepted . . . .

Such deference to the authority of superior persons was made necessary by the practical obstacles faced by most persons seeking knowledge required for sound judgment . . . . During a transitional period when there was disagreement  among those claiming authoritative knowledge, it was understandable that an individual would rely on private judgment.  But it was preferable, if the best educated and most competent were in agreement, for most persons to defer to authority, even in moral and political matters . . . . To believe received opinion (or, as he also called it, received doctrine) during a transitional era, when it might have originated in an earlier but now discredited natural era and when those claiming moral authority were in sharp disagreement, was, of course, unwarranted.  But when the authorities were competent and united, as they were (Mill believed) in physical science, and as the Catholic clergy were in the middle ages, and as they would be in a future organic state of society, it was reasonable to be guided by it.  (109-10, citing "The Spirit of the Age")

I am certainly far from an expert on Mill, but the book is, I think, interesting and usefully complicating in light of the uses to which Mill is sometimes put in legal theory, constitutional law, and legal academic discussion generally.

A last note -- a point of personal privilege.  Professor Hamburger is none other than the father of my friend and mentor, Philip Hamburger.  A distinguished academic family indeed.


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