ABSTRACT
In the 19th Century, when John Stuart Mill and his conservative enemy Cardinal John Henry Newman were politically and intellectual active, it was simply a given that the law would enforce Christian or Biblical morality of social and cultural matters like abortion, homosexuality, drug use, euthanasia and suicide, pornography and a wide variety of other issues. Indeed, this had always been the case in Britain, the U.S. and other Western nations in ways that would be all but unthinkable today. Even at that time, though, Cardinal Newman was already afraid that the religious authorities were losing their traditional political and legal power to regulate public and private morality. Over the last 30-40 years, the Western world has moved in a liberal or libertarian direction on these controversial issues in ways that would have appalled Newman, but that Mill would have (mostly) applauded.
Abortion, gay rights and gay marriage, euthanasia, marijuana laws and pornography have all been highly controversial issues in American law and politics over the last forty years. Many of the proponents of toleration and decriminalization of these acts are, wittingly or unwittingly, following the precepts of libertarian philosophers like John Stuart Mill. In his classic work On Liberty (1859) he made a utilitarian case for promoting the maximum freedom of the individual as a means of promoting the general welfare and greatest good for the greatest number. Although he did not refer to all these issues explicitly, he was prepared to grant each person the maximum latitude of personal freedom consistent with public order as long as they did no harm to others. Like present-day libertarians, he would have permitted every consenting and rational adult the right to have sexual relations as they chose, solicit prostitutes, drink and use drugs, read whatever they chose and even ends their own lives. All of these actions were criminalized or heavily restricted by the legal authorities of his time, usually on the grounds of enforcing Biblical or Christian morality. Although he is all but forgotten in current debates about these issues, the conservative Cardinal John Henry Newman was extremely hostile to Mill’s concepts of liberalism and personal autonomy, as are his conservative Christian successors today. They were outraged by the Roe v. Wade decision in 1973, for example, which permitted abortion in the first trimester and overturned the anti-abortion laws in 46 states. They actively campaigned to keep homosexuality criminalized at the state and federal levels and to ban gay marriage, and are also opposed to state laws decriminalizing marijuana, pornography or euthanasia. Like Cardinal Newman in the 19th Century, they insisted that the function of law was to uphold explicitly Christian and Biblical morality, and that they were absolutely right and justified in doing so because their religion was the truth and other ideas were errors. As far as the law is concerned, Mill and the libertarians have made great gains in decriminalizing a wide variety of acts for consenting adults, particularly since the 1960s and 1970s, and not only in the U.S. but everywhere in the Western world. In the 19th Century, it was still generally a given that the law would enforce the Christian moral view when it came to abortion, euthanasia, sexuality, divorce, pornography, drug use and a wide variety of issues, but this is by no means still the case today.
In his famous work On Liberty (1859), John Stuart Mill put forward the definitive libertarian or classical liberal argument that the purpose of law was to prevent harm to others, protect the young and dependent, and maintain public order and safety. Unlike Cardinal Newman and his other conservative opponents (then and now) he explicitly rejected the notion that the purpose of law was to uphold Christian or religious morality. More than any other writer up to that time, he was prepared to grant broad personal freedoms and autonomy to all persons—including equal rights and citizenship for women—as long as they did no harm to the lives, bodies and property of others (Murphy, 2006, p. 83). This freedom was not absolute or unlimited, since Mill would have imposed moral obligations and duties such as requiring them to provide for their families. There were also duties that each person had to fulfill to maintain “a decent common life in society”, such as military service, paying taxes, jury duty and assisting in the defense of others if they were threatened with harm (Mill 1859). He insisted, however, that unpopular opinions, sexual behavior among consenting adults, suicide, and the use of alcohol and drugs should not be a matter of law or legal prohibitions. Similarly, an atheist or agnostic who questioned the Bible and the religious authorities or refused to attend church should not be punished by law.
Mill’s utilitarian philosophy offered every person maximum liberty in the private lives on the grounds that this would also maximize the happiness and well-being of the greatest number of people in society. He held that individuals almost always knew what was best for themselves, rather than lawmakers or church authorities. Equally anathema to men like Cardinal Newman, he sounded almost like a child of the 1960s counterculture when he argued that people should be free to conduct their own “experiments in living” in order to determine which lifestyle was truest and best for themselves (Mill 1859). Compared to his conservative and religious critics, he had a high “expansive view of human happiness” and potential, and argued that this should form the basis of the legal and political order (Murphy, p. 86). Just because someone like Cardinal Newman disapproved of divorce, abortion, suicide or certain books, pictures, ideas and sexual acts on religious grounds did not give him the right to use the law and the power of the state against those who did not share his religious views. Mill briefly mention “offenses against decency” in public that could be legally prohibited, without spelling out what those might be in any great detail (Murphy, p. 84). Some of his contemporary successors on the libertarian side like Joel Feinberg could imagine a whole range of public acts that might give offense, from nudity, to vomiting to defiling a corpse, or performing various sexual acts in the open. All of this harms others to the extent that they are offended and upset, although he also points out that in the past these standards or public behavior were far more rigid, and included displays of affection between interracial or same-sex couples (Feinberg 1985). He also explained that his principles of individual liberty did not apply to minors, the mentally ill or those not fully in possession of their rational faculties, and agreed that the law had to play a protective or paternalistic role in such cases (Murphy, p. 93).
Were he alive today, Mill almost certainly would have agreed that consenting adults, including homosexuals, should be free to choose their own partners, that they should be allowed to read pornography or use marijuana, and that they should be free to end their lives if they were terminally ill or in unbearable pain. He probably would have been more restrictive about euthanasia being applied to the mentally ill, simply because they were not capable or rational choice. Gerald Dworkin called this exception a form of “limited paternalism” in which the freedom of individuals is restricted for their own good, particularly for the mentally ill and developmentally disabled, to prevent them from harming themselves or being taken advantage of by unscrupulous persons (Murphy, p. 94). In this area of law, the state would intervene to set standards and protect individuals on the basis of how they would be expected to decide if they were fully in possession of their rational and cognitive faculties. As for abortion, he would have agreed with the idea of free choice for women, but might also have been concerned about whether than law should offer protections to the unborn child, since it obviously had no power of rational decision of choice. On the whole, though, he would have taken the libertarian side on these controversial legal and social issues, just as John Henry Newman would have taken the conservative and restrictive side.
Given that Mill’s doctrine really has become the prevailing one in so much of contemporary law and government in the Western world, it is difficult to recall that his version of liberalism once faced intense opposition, and indeed that it still is by many Catholic and evangelical religious believers in the United States. His entire worldview, as an Anglican and later Catholic religious leader was extremely hostile to liberalism, utilitarianism and expansive rights and freedoms for individuals. In all of his writings from the 1820s onward, he denounced liberalism, rationalism and the Enlightenment as false and even evil doctrines because they threatened to undermine the Bible and the central role that Christianity had played in society for over 1,000 years—and still did even in Mill’s time (Newman, 1986, p. 29). This was why abortion, homosexuality, suicide, pornography and the use of drugs were all illegal at that time, and continued to be well into the 20th Century. For Newman, liberalism was “a general term of disapprobation and abuse” that he applied frequently to all his opponents in debates about law and morality, and he especially loathed the ideas of Mill (Newman, p. 30). He openly and explicitly opposed freedom of thought and freedom of speech on the grounds that the individual should have no power to decide on morality as taught by church authorities, because error had no rights. Certainly none of his anti-liberal or anti-libertarian successors today among social and cultural conservatives have expressed their views any more clearly and bluntly, although even in the 19th Century Newman sensed that the church authorities were already in a losing battle with liberals like Mill for control of law and public policy.
In recent decades, the Western world has been moving away from the type of legal and cultural conservatism represented by Cardinal Newman on a wide variety of issues, even in the United States, which is the most culturally and religiously conservative society among the ‘advanced’ nations. Homosexuality has been decriminalized almost everywhere, and just recently Britain, France and several U.S. states moved to allow gay marriage. This would have been unthinkable in the time of Mill and Cardinal Newman, and shows just how far societies have moved in the liberal or libertarian direction. Abortion has been decriminalized almost everywhere, either by court decisions or legislative acts, although the religious Right in the U.S, has been battling continually for decades to return to legal restrictions, even in the case of rape and incest. Euthanasia and assisted suicide are now legally permitted in Holland, Switzerland, Washington and Oregon, while several U.S. states recently voted to decriminalize the use and possession of marijuana. As for pornography, the Internet is literally awash with it, and the only legal restrictions left in place concern minors or sex slaves forced into the trade by organized crime. On the legal front, then, Mill has been winning the battle, especially in the last 30-40 years, while Newman and his successors have been pushed on the defensive.
REFERENCES
Feinberg, J. (1985). The Moral Limits of the Criminal Law: Volume II: Offense to Others. Oxford University Press.
Mill, J.S. (1859; 1989). On Liberty and Other Writings. Ed. Stefan Collini. Cambridge University Press.
Murphy, M.C. (2006). Philosophy of Law: The Fundamentals. Wiley-Blackwell.
Newman, J. (1986). The Mental Philosophy of John Henry Newman. Waterloo, Canada: Wilfrid Laurier University Press.
