Gandalf stood up. He spoke sternly. ‘You will be a fool if you do, Bilbo,’ he said. ‘You make that clearer with every word you say. It has got far too much hold on you. Let it go! And then you can go yourself, and be free.’As readers of this blog know, I sometimes make my posts connect things I’m reading with things happening in our philosophy department and/or the news.
--J. R. R. Tolkien’s The Lord of the Rings (emphasis mine)
That might be why I see links between current headlines (e.g., marijuana laws) and our department’s upcoming talks on happiness, harm, and the proper role of the state in promoting one and preventing the other.
So I hope this post can be an appetizer to our philoso-feast in the next two weeks: come enjoy our own Kyle Swan and Dan Weijers and UC’s Distinguished Professors David Brink and Gerald Dworkin.
In Mill’s Progressive Principles (OUP 2013) David Brink explains one reason why John Stuart Mill’s “perfectionistic” liberalism is preferable to John Rawls’ “political” liberalism (Rawls insists that states remain “neutral” between competing views of “the good life”):
“…whereas liberal neutrality is neutral about the good, it is not neutral about matters of rights and social justice. This presupposes a sharp line between issues about the good and issues about the right. But this distinction may be hard to draw sharply. Presumably, central among the individual rights that liberal neutrality insists on upholding are rights against harm. But harm involves the setback of important interests, making individuals worse off then they would otherwise be. But then one can’t identify harms without making some assumptions about what makes an individual’s life go better or worse. Nor should we assume that one could recognize only those harms that set back interests that are part of any reasonable conception of the good. For instance, you’ve harmed me if you’ve injured me in a way that prevents me from pursuing sports as a vocation or avocation, even though there are reasonable conceptions of the good that assign no significance to sports. You've harmed me if you rendered me impotent, even though sexual intimacy is not a part of every reasonable conception of the good. In short, it is hard to see how the state can do its job of enforcing the right without making some assumptions about the good.” (256-7)I am sympathetic with this criticism of liberal neutrality. But I think it can go further.
That’s because I think something called “legal moralism” can be derived—in part—from Mill’s On Liberty.
Since On Liberty is widely (and correctly) regarded as a classic source of fruitful lines of argument against legal moralism (and its cousin, legal paternalism), my thought here may be of interest to both friends and foes of Mill’s project there.
First, some quick definitions:
Legal paternalism is roughly the idea that the fact that an activity harms the one doing it is a good and perhaps sufficient (though override-able) reason for making that activity illegal.
Legal moralism is roughly the idea that the fact that an activity is immoral is a good and perhaps sufficient (though override-able) reason for making that activity illegal.
So very briefly, and without many important qualifications, my argument is this.
Mill’s final chapter of On Liberty discusses many “applications” of the principles he advanced in the earlier portion of the book, but his application forbidding even “voluntary” slavery relies on an additional principle like this:
VS: the fact that an activity involves giving up one’s own freedom in a way like the voluntary slave gives his up is a sufficient reason for making that activity illegal.Legal moralism, again, is roughly the following principle:
LM: the fact that an activity is immoral is a good and perhaps sufficient (though override-able) reason for making that activity illegal.To get from Mill’s discussion of voluntary slavery to legal moralism, what we need is some sort of ‘bridge’ principle that states a close connection between immorality and freedom:
B: the fact that an activity is immoral is sufficient for the said activity to involve giving up one’s own freedom in a way like the voluntary slave gives his up.Perhaps the strongest version of such a principle is the idea that immorality, as such, is slavery. Arguably something like this idea can be found in Kant, in Plato, and elsewhere. One statement of the idea is found in eight words of Jesus from the gospel of John: “…everyone who sins is a slave to sin” (John 8:34).
This is not an isolated verse fragment plucked out of nowhere. The context of these eight words, what comes before and after them, is relevant. Likewise, the story in John from which these words are taken is not an isolated story plucked out of nowhere. The idea that sin, qua sin, is a form of slavery resonates with the Jewish thought-world that Jesus was born into, and it is echoed by his followers so frequently we might call it the “Peter, Paul, and Mary Principle” (with no disrespect to the musical group).
Still, since other thoughtful people, like Plato and Kant, have thought the same or similar thing, here’s a more inclusive way of putting the idea: “immorality is slavery.”
Here, I exercise my liberty to coin a new term—“oughtabeillegal” (which reflects how a New Yorker says “ought to be illegal”)—we can state the argument in less than eight words:
- Slavery oughtabeillegal. (This is from Mill’s On Liberty. See VS above.)
- Immorality is slavery. (This is the inclusive Peter, Paul, and Mary Principle. See B above.)
- Immorality oughtabeillegal. (This is Legal Moralism. See LM above.)
Isaiah Berlin fans, this is your cue to pounce.