Should we tolerate sexual intercourse on a bus? John Stuart Mill on liberty

By Dr Peter Connolly

Before his retirement, Peter Connolly was senior lecturer in Religious Studies at the University of Chichester where he taught courses on Ethics, Indian Religion and Psychology of Religion. He has also worked as an associate lecturer in both Psychology and Religious Studies with the Open University. On 12th April 2025, Peter gave this talk to Dorset Humanists in Bournemouth. Some notes and illustrations have been added.

John Stuart Mill

Introductory note

John Stuart Mill (1806-1873) was a British philosopher, economist, political thinker and Member of Parliament for Westminster (Liberal Party) from 1865 to 1868. He campaigned on progressive and liberal causes including votes for women, land reform, Irish affairs, individual liberty and civil rights. His famous book On Liberty was published in 1859.

I will offer a brief overview of On Liberty as a whole, homing in on Chapters 2 and 3, where Mill makes a case for free speech and “experiments in living”. In this short work of five chapters, first published in 1859, Mill seeks to set out “the nature and limits of the power which can be legitimately exercised by society over the individual”.

Chapter I – Introduction

After a brief comment on the ways in which people have grappled with the issue of social regulation, Mill makes the point that even when government is identical with the people, those who exercise the power are not always the same as those over whom it is exercised. So safeguards are needed to protect minorities from “the tyranny of the majority”. (The flip side of this is the tyranny of the minority, which is the title of a recent and interesting book by Steven Levitsky and Daniel Ziblatt.) This applies not just to the exercise of blunt coercion but also to “the tyranny of prevailing opinion and feeling”, which can restrict the formation of any individuality that is not in keeping with its own values.

So where is the line to be drawn between what society can legitimately impose on an individual and what it cannot? For Mill, the fundamental principle that should guide the drawing of such a line is what has come to be known as the harm principle: “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.” This principle is seen by Mill as ultimately justified by considerations of utility, a utility that is “grounded on the permanent interests of man as a progressive being”.

By way of explicating his harm principle further, Mill identifies three areas that constitute “the appropriate region of human liberty”:

1. liberty of thought and feeling, absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral or theological, including publishing such views, opinions, etc.

2. framing the plan of our lives to suit our own characters;

3. meeting with others for any purpose that does not involve harm to others.

Chapter II – Of the Liberty of Thought and Discussion

In this chapter, Mill seeks to defend four reasons for thinking that allowing diversity of opinion is ultimately beneficial for civilised societies. They are summarised at the end of the chapter though they are less clearly delineated in the body of the text. Nigel Warburton, a British philosopher and author of Arguments for Freedom 1999, calls them:

1. The infallibility argument

2. The partly true argument

3. The dead dogma argument

4. The link with action argument  

Mill also, at the end of the chapter, addresses “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”. Mill seems to regard this latter claim as somewhat duplicitous, as people whose views are attacked and find adequate answers hard to come by are likely to call their critics intemperate. Moreover, in the debates of his day Mill noticed that the use of devices such as invective, sarcasm and the like tended to be described as “honest zeal” and “righteous indignation” (i.e. euphemism) when employed in support of prevailing opinion, and as “morally culpable” (i.e. hyperbole) when employed by its critics. For Mill, the government has no business in restraining the use of such devices, and if it did it would be more necessary to employ the law for restraining the advocates of prevailing opinion than those of contrary ones.

The Infallibility Argument

“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.” “The beliefs which we have most warrant for have no safeguard to rest on but a standing invitation to the whole world to prove them unfounded.” For Mill, to silence opposing views is to assume infallibility for one’s own, an assumption that no human being can justify. If the assumption cannot be justified, then neither can the silencing. Even the Roman Catholic church, which held that the sun travelled around the earth as one of its “infallible dogmas” had, in the end, to concede that it was wrong. Nevertheless, it would be wrong to think that the certainty of infallibility is the only reason why people might want to suppress contrary views. Often they do so as a means of retaining power. Of course, in civilised societies they cannot admit that this is the case.

The Partly True Argument

This is that prevailing opinion is often not the complete truth. Contrary opinion may be mostly false, but there is benefit to society if it is tolerated, as even a miniscule amount of truth is an aid to human progress. 

The Dead Dogma Argument

Mill contrasts living truth with dead dogma, and for him what distinguishes them is essentially justification. Even if a belief is true, argues Mill, unless the person who holds it has some idea why it is true and how it is superior to other views they do not know that truth as a rational being. Rather, he or she holds it as superstition. Becoming acquainted with the arguments presented by holders of different views is, for Mill, the best way to ensure that a truth stays alive. So important is this, he claims, that if genuine opponents cannot be found, “it is essential to imagine them and supply them with the strongest arguments which the most skilful devil’s advocate can conjure up”. In the course of developing this argument, Mill comments on how, when beliefs are minority views and struggling against persecution, they are often at their most vigorous – they must confront criticism on a daily basis. One of Mill’s critics, Fitzjames Stephen, latched on to this and argued that it led to a consequence that Mill would not accept: that persecution is what keeps truths alive. The problem with this reductio ad absurdum argument is that Mill does not need the persecution scenario to develop his case. All he requires is that knowing a truth to be a truth demands some kind of justification and that the best way to provide this is to be confronted with genuine alternatives.

James Fitzjames Stephen (1829–1894) was a prominent 19th-century British judge, legal scholar and writer, best known for his conservative defence of law and authority, and for his sharp critique of liberal thinkers such as John Stuart Mill. His book Liberty, Equality, Fraternity (1873) was a conservative response to Mill’s On Liberty. He argued that the state has a duty to enforce moral standards.

The Link with Action Argument

This argument is developed as a subsection within the dead dogma argument. Mill draws attention to the hypocrisy of Christians, who profess beliefs that they rarely, if ever, act upon. He states: “They do believe them, as people have always believed what they have heard lauded and never discussed. But in the sense of that living belief which regulates conduct, they believe those doctrines just up to the point to which it is usual to act upon them. In short, dead dogmas are dead, not least because they lack the power to initiate actions that are commensurable with them.

Abhishek Saha

Free speech in universities

At this point I wish to insert something that was not part of my original talk, though current developments prompted me to assert that Mill’s arguments are particularly relevant at the present time. As Abhishek Saha (advocate of academic freedom and Professor of Maths at Queen Mary University of London) wrote recently: “Last Friday (28.07.2024), the UK’s Secretary of State for Education, Bridget Phillipson, stopped the commencement of England’s ‘burdensome’ Higher Education (Freedom of Speech) Act ‘in order to consider options, including its repeal’." He noted that a recent investigation by Alumni for Free Speech found that universities spend over 200 times as much on Equity, Diversity and Inclusion 2(EDI) as on free speech protection and asked: ‘What does it mean for our democracy when a minister can so casually stop the commencement of legislation passed in the last parliament? What does it mean for the regulatory state when it prioritises the appeasement of senior managers in the very sector being regulated? And what does it mean for higher education when there is, once again, no effective check on its tendency to betray its own historic purpose?" Times Higher Education July 30, 2024

This is not the only attack on free speech in contemporary Britain, but as it undermines free speech in universities it is surely one of the worst. Mill would be horrified by it and, I would suggest, so should we. My own feelings about it were amplified when I recently read a book by Danish lawyer Jacob Mchangama entitled Free Speech: a global history from Socrates to social media (2022). The penultimate chapter of this work is entitled “The Free Speech Recession”. It catalogues much of the rejection of free speech by various states in the last 25 years. For example, “In 2003, 41 percent of countries had a free press. By 2016 only 31 percent did, according to Freedom House. In terms of population, the numbers were even starker. Only 13 percent of the world’s 7.4 billion people enjoyed free speech in 2016, while 45 percent lived in countries where censorship is the norm. Although free speech was enshrined in the 1948 Universal Declaration of Human Rights, the Soviet bloc, along with Saudi Arabia and South Africa, “fought relentlessly to restrict free speech with clauses obliging member states to prohibit hate speech”. Modern arguments for censorship in the democratic world are often couched in similar terms: protecting people against hate or harmful speech. Eleanor Roosevelt had argued against the inclusion of hate speech caveats to the UDHR, claiming that they “could be abused to render all rights null and void”. The autocracies analysed by Anne Applebaum in Autocracy Inc. The dictators who want to run the world show quite clearly what an insightful warning that was.

Chapter III – Of Individuality, as One of the Elements of Well-Being

In the introductory chapter, Mill had written about the “appropriate” region of individual liberty and claimed, under his point two, that the harm principle requires, among other things, “framing the plan of our life to suit our own character.” Here he elaborates that point with a discussion of what he calls “experiments of living”. Once again, he addresses the challenge posed by prevailing opinion, which, by and large, assumes that people should be trained and educated in the principles that society has evolved over time. But, claims Mill, there comes a point when an individual reaches maturity at which the person has to decide for him or her self exactly how much of what has been received is appropriate as a guide to the construction of his or her own life. Mill offers three reasons in support of this:

1. the experience of others may have been too narrow to serve as guide for everyone;

2. some people are unsuited to “customary” modes of life;

3. even the best of customary ways are deficient if they do not involve the individual in choosing them.

Moreover, many ways are not the best, e.g. the Calvinistic ideal of obedience patronises a “pinched and hidebound type of human character”. The same could probably be said of Islam (which means submission to all its notions and rules). By contrast, Mill’s vision of human fulfilment is expressed through the metaphor of a tree, “which requires to grow and develop itself on all sides, according to the tendency of the inward forces which make it a living thing”. By cultivating that individuality “within the limits imposed by the rights and interests of others, a human being becomes a noble and beautiful object of contemplation”. (These sentiments were reiterated in the 20th century by humanistic psychologists with their ideal of self-actualisation.) Such individuals are, claims Mill, a benefit to society:

• they offer originality and, often, genius;

• they and their eccentricities act as a foil against the tyranny of prevailing opinion;

• the life styles they might adopt open up new patterns of life to be explored;

• they help to keep society flexible and innovative – he compares European nations with China, which stagnated. Stagnation, claims Mill, occurs when societies repress individuality.

If we look back to earlier periods in history we can see that conventional forms of tolerance are often little better than the intolerance for which they are presented as alternatives: “In former days, when it was proposed to burn atheists, charitable people used to suggest putting them in a madhouse instead…” Rather than this pseudo-tolerance, Mill, following the educational reformer Wilhelm von Humboldt, argues for two conditions being necessary for human development:

1. freedom; and

2. variety of situations, which is promoted by allowing “experiments of living”.

Chapter IV – Of the Limits to the Authority of Society over the Individual

Mill’s primary concern in this chapter is the boundary between an individual’s control over his or her life and society’s control over that same life. In his view, with any action that is purely self-regarding (that is, an action that affects only the individual who performs it, or at least does not directly harm others) the individual is sovereign. If an individual chooses to live a wasteful, seemingly worthless life that is rooted in base pleasures, then we may disapprove and bad consequences may follow, but we are not justified in coercing that individual to behave otherwise.

He is aware that some people may not be inclined to recognise a sphere of entirely self-regarding actions. They might claim, he states, that “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.” In opposition to this, Mill argues that society’s right to coerce individuals whose behaviour it disapproves of only becomes active when their conduct violates a “distinct and assignable obligation” to others. In support of his view, Mill comments on the fact that society has extensive control over the education of its children; hence “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.” Such consequences, insofar as they relate to self-regarding actions, are what Mill calls “natural penalties” and this is all that those whose behaviour elicits them should have to suffer. Society cannot legitimately claim the right to coerce mature individuals to conform on such matters.

The second half of the chapter deals with what Mill calls “the strongest of all the arguments against the interference of the public with purely personal conduct”: the negative consequences that arise from a society investing its own preferences with the character of moral laws. This is a version of the “tyranny of the majority” argument, which here is developed by a series of examples, mostly taken from religion. The view that Mill is contesting is that a behaviour cannot be classed as self-regarding if another person is offended by it, and that if another is offended it should be prohibited. The implications of this position are ridiculous because, for example:

• pork would be banned since Muslims find its consumption disgusting;

• beef likewise because Hindus find it disgusting;

• so too with all flesh, as vegetarians find it disgusting;

• Protestant worship because Catholics find it offensive;

• Catholic worship because Protestants find it offensive;

• alcohol because Puritans find it disgusting;

• homosexuality because heterosexuals find it disgusting;

• heterosexuality because homosexuals find it disgusting.

Indeed, most behaviours are disgusting to some people. Should that be a reason for prohibiting them?

Richard Wollheim (1923-2003 – a British philosopher who was sympathetic but constructively critical of Mill’s arguments) offers a useful way of determining whether the existence of offence transforms a prima facie self-regarding action into an other-regarding one: if the pain or harm of the offence has no existence independently of the belief/feeling that it is wrong, such offence cannot be used as a basis for the reclassification of the action.

Chapter V – Applications

Mill begins this chapter by directing attention to differences within other-regarding actions: not all warrant state interference even when the interests of others might be damaged as a result of such non-interference. Varieties of competition provide some examples, e.g. sporting contests, competition for jobs or contracts, product competition. The state can legitimately 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”. Other admissible controls include the prevention of fraud by adulteration, enforcement of sanitary precautions, and health and safety measures. Issues of crime prevention also lie on the borders of justifiable incursions into liberty. Mill uses the sale of poisons as an example, and suggests a form of licensing and record keeping which will simultaneously allow their procurement and identify subsequent abusers.

Then he comes to what he calls “offences against decency”. He regards these as being “only connected indirectly with our subject”, but surely this is wrong, for they are crucial in delineating the boundaries of the harm principle. In Mill’s view, if a pattern of behaviour that causes widespread public offence can be pursued in private then the general good (i.e. the greatest happiness) will probably be best served by prohibitions on its public manifestations. The British philosopher Jonathan Wolff calls this his “indecency policy”. It is derived from the same source as the principle of liberty itself: the principle of utility (conceived in its “largest sense” as “grounded on the permanent interests of a man as a progressive being”).

Of greater concern for Mill is the freedom to confer with others about self-regarding actions. He argues that people should be “free to consult with one another about what is fit to be done, to exchange opinions, and give and receive suggestions”. He also addresses the issue of withdrawal from agreements that prove to be injurious to oneself. The most extreme version of this is the case of someone who sells himself into slavery. By so doing, “… he abdicates his liberty; he forgoes 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.” But what about doing this for a relative’s benefit? Marriage provides other examples of the need to dissolve a contract that is injurious to either or both of its contractees.

Should there be any limits to “experiments in living”?

I now turn to the question I raised at the beginning: What limits, if any, should there be to the “experiments in living” that are allowed? Experiments in living, or people’s freedom to act upon their opinions and carry them 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,” are, for Mill, a natural expression and extension of the liberty principle (sometimes called the harm principle). This has various formulations in Mill’s essay On Liberty. The most oft-quoted of these is probably “… 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.” This version sets limits for the community or state within which individuals live their lives. The principle also finds more positive expression in passages where Mill argues that such freedom from the exercise of external regulation includes the “… absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral or theological… liberty of tastes and pursuits (… without impediment from our fellow creatures, so long as what we do does not harm them) … [and] the liberty … of combination among individuals … to unite for any purpose not involving harm to others.” The value of “experiments of living” is thus partially established via Mill’s general arguments in favour of the liberty principle. As I noted, those arguments are largely utilitarian in character: “The general happiness will be advanced by assigning people a large private sphere of rights to non-interference.”

The two main ways such rights to non-interference can be exercised are in the realms of speech and action. Hence there is more overall happiness in societies where people can, say, publish and do what they please (within the constraints of the harm principle). There are, in Mill’s view, a number of reasons for this. When he was writing, the most innovative, wealthy and powerful countries on earth were European. So, he asks in Chapter 3 of On Liberty, “What has made the European family of nations an improving instead of a stationary portion of mankind?” His answer is that those nations have, amongst themselves, “struck out on a great variety of paths, each leading to something valuable”. This is not to say that each of those nations would not have liked to force the others to conform to its own values. They would. But because they were unable to do this, “each has in time endured to receive the good which the others have offered.” Likewise, he argues that each society will benefit by allowing individuals within them to explore the widest possible range of views and lifestyles.

Mill acknowledges that many of these views and lifestyles may well prove to be inferior to the views and lifestyles maintained by the majority, but some will, at least in part, be improvements which then become available to others. The kind of society that lacks such basic freedoms Mill labels “Calvinistic”, after the Protestant Christian reformer John Calvin, who, as has been mentioned, taught that “All the good of which humanity is capable is comprised in obedience.” Mill emphatically rejects this as an ideal, comparing it to the compression and stunting of Chinese women’s feet by binding. For him, the “despotism of custom” generates a “standing hindrance to human advancement”. Only by cultivating individuality and calling it forth “within the limits imposed by the interests of others” can a human being become “a noble and beautiful object of contemplation”.

Mill supports these rather grand claims about the evils of enforced conformity and the benefits of freedom with a number of arguments that he develops initially in support of free speech. Warburton, as I have noted, calls these the infallibility argument, the partly true argument and the dead dogma argument. Mankind, claims Mill, is, as yet, imperfect. Customary styles of life must, it follows, also be imperfect. Society cannot, therefore, legitimately impose these on all of its members (the infallibility parallel). Customary styles of life are the result of what experience has taught those who developed them and may, on those grounds, have a claim to a person’s deference, i.e. they may contain valuable elements (the partly true parallel), but there may be people for whom they offer a less than optimum flourishing. This is the kind of argument advanced in debates about legalising homosexual relations between consenting adults and allowing such adults to benefit, as others do, from the ability to marry. Finally, he points out that even if those customary lifestyles are suitable for a person they need to be freely chosen by that person if they are to “develop in him any of the qualities which are the distinctive endowment of a human being” (the dead dogma parallel).

Harriet Taylor Mill

These arguments all purport to show that the individual is not best served by the imposition of conventional lifestyles. But Mill does not stop there. He also claims that by allowing individuals and groups to explore alternatives, as he himself was doing with Harriet Taylor (later Harriet Taylor Mill), society as a whole could benefit. (Elizabeth Rappaport points out that "in their society, only two kinds of relationships between men and women were tolerated: respectable marriage – virtually indissoluble and usually arranged – and carnal traffic between respectable men and loose women, away from the family hearth. John and Harriet shocked and infuriated almost everybody by forming a relationship that conformed to neither pattern.") So, he writes in Chapter 3 of On Liberty, “In proportion to the development of his individuality, each person becomes more valuable to himself, and is therefore capable of being more valuable to others…” In short, experiments of living are to be encouraged not only because they are a natural expression of genuine social freedom and allow individuals to develop their innate capacities to the fullest, they are also a major wellspring of social innovation and advancement.

Mill met Harriet Taylor, a married woman, when they were both in their early twenties. She was his “intellectual collaborator”. After the death of her husband, by which time she and Mill were in their mid-forties, they were married. Sadly, she died seven years later.

Inspired by philosopher Joel Feinberg’s famous bus thought experiment, this image asks: how much discomfort should we be expected to tolerate in public? From garish clothing to unsettling behaviour, where does personal liberty end — and public offence begin?

Valuable as they are, Mill does not argue that there should be no restrictions on experiments of living. The liberty principle would curtail all “experiments” that involve demonstrable harm to others. In addition, he says that certain acts of public indecency may be curtailed. In the passage where he makes this claim, Mill states that such acts “are only connected indirectly with our subject”, though his omission of a full discussion of the matter is, perhaps, indicative of the possibility that Mill had not thought out this aspect of his position as fully as he needed to. In his talk on “Mill: Liberty and Offence”, Jonathan Wolff comments on considerations introduced by the American philosopher Joel Feinberg, who asks how many unconventional acts a person travelling on a crowded bus should be required to tolerate in close proximity to him or herself. What about horrible smells? Migraine-inducing colour combinations? Intolerable noises? The consumption of live insects? Eating other people’s vomit? Sexual intercourse? Is offence not a sufficient warrant for the prohibition of such things? Mill doesn’t comment on cases like these but Wolff thinks that he would be sympathetic to Feinberg’s proposal for their regulation. In Mill’s view, if a pattern of behaviour that causes widespread public offence can be pursued in private then the general good (i.e. the greatest happiness) will probably be better served by prohibitions on its public manifestations.

This policy is derived from the same source as the principle of liberty itself: the principle of utility (conceived in its “largest sense” as “grounded on the permanent interests of a man as a progressive being”). A corollary of this would seem to be that if a behaviour does not harm others, even though it may offend them, and cannot be performed in private, then it ought to be allowed in public. It is, of course, a moot point as to whether this class of behaviours contains any examples. Many of the items on Feinberg’s  list seem amenable to private gratification, e.g. horrible smells, intolerable noises, the consumption of live insects, eating other people’s vomit and sexual intercourse, though migraine-inducing colour combinations is surely a candidate for exemption. But what about a lifestyle that involves shocking and offending others as a deliberate policy? The behaviour of some modern artists might fall into this category. Mill’s principles, I suspect, would support their right to engage in it, though whether they would cover shocking those who are denied full liberty under them, such as children and people with cognitive impairments, is another matter. Their welfare may require curtailments of liberty that would not apply in the case of autonomous adults. And here we come to a delicate matter. Socrates was tried and punished for corrupting the youth of Athens, not for humiliating its prominent citizens. But then if shocking acts could only be performed in situations where children, etc. had been deliberately excluded then they are effectively taking place in a non-public environment, an environment that could be characterised, in its loosest sense, as private. In this characterisation, all activities whose viewing or hearing is restricted by a requirement to pay, or to join an organisation, or simply by the effective exclusion of designated persons, are private. Boxing matches and the like would come into this category, even though some of the participants might be harmed as a result of their involvement (volenti non fit injuria – to a willing person no wrong is done).

Many moralists have been uncomfortable with Mill’s division of behaviour and lifestyles into public and private spheres, arguing that it is untenable. In this final section I will offer an argumentative sketch which contends (a) that such arguments are unconvincing, and (b) that Mill’s indecency policy:  “… public indecency can sometimes be prohibited, but nothing people do in private (that is non-harmful) should ever be prohibited”, ought to be taken as a default position for regulating experiments of living, and rejected only if sound arguments are forthcoming to support such a stance.

In Arguments for Freedom, Nigel Warburton presents a case for the untenability of the public/private distinction, that builds upon criticism developed by Mill’s contemporary Fitzjames Stephen. Very few of our actions, he points out, are purely self-regarding, i.e. have no effect on others, even though they are undertaken in private. He cites examples such as smoking (which will increase the costs of the NHS should treatment come to be needed), Gauguin’s abandonment of his family and emigration to Tahiti (which left his dependants in financial difficulty) and staying out late at night (which could damage health and financially hurt dependants). There are two primary moves in this argument. The first involves reducing the number of purely self-regarding actions to insignificance. The second involves a subtle shift from this towards interpreting actions that might, on the face of it, seem to be self-regarding but actually have adverse effects on others as harmful actions. But are they? Let us examine the smoking case a little more carefully. A smoker who smokes in the privacy of a garden shed is not directly affecting anyone else but, the argument goes, others are affected indirectly. His family might be adversely affected by the cost of the smoker’s cigarettes or the possibility of premature illness caused by smoking, and the NHS might have to divert resources from other cases to treat the smoker should he need treatment. However, it is far from clear that these indirect effects constitute “harms”. Even if they are treated as harms there are many other acts and omissions that have similar or equivalent effects. Examples might be the frequent consumption of junk food and failure to exercise regularly. Should the first of these be prohibited and the second enforced? Few people would think so, for the “cure” would be worse than the ailment.

Offending the man on the Clapham omnibus

There are those, however, who have argued that only those “seemingly self-regarding” acts that offend a society’s conventional morality need to be regulated in this kind of way. For such a person (the conservative judge Patrick Devlin would be an example), even if smoking and lack of exercise caused the NHS to incur identical costs, if only the former offended public sensibilities then only that would have state or community coercion directed against it. By way of rejoinder, Mill and his supporters would argue that public sensibilities are hardly likely to be our best guide on these matters. Devlin’s own guide, “the man on the Clapham omnibus”, is, on his own admission, not a rational man. His reasonableness, as expressed in his moral convictions, is based on a combination of intolerance, indignation and disgust. This cannot be a foundation for law since, as HLA Hart pointed out, when the popular limits of tolerance shift, as they have done so often, “the law may then be left without the full moral backing it needs.” If Hart’s claim has any force we cannot employ popular or consensus morality as a basis for distinguishing between kinds of “seemingly self-regarding” acts in order to prohibit or enforce just some of them. Thus, unless some other method is available to do this job, we have to put all such acts on a par. But then, if we do this, the price of prohibition and enforcement becomes too high.

Patrick Devlin (1905-1992) was a judge and legal philosopher. He was a conservative not unlike James Fitzjames Stephen. HLA Hart (1907-1992) was a British legal philosopher. The so-called Hart-Devlin debate, which took place in the late 1950s to the early 1960s, was related to the Wolfenden Report (1957) which recommended the decriminalisation of homosexual relationships conducted in private.

Conclusion

It seems then, that Mill’s liberty principle and his indecency policy offer us the most balanced, albeit incomplete, guide to setting the boundaries of freedom with regard to “experiments of living”. Guides based on other criteria will, therefore, need to present a clear demonstration of their superiority to Mill’s before they can even be considered as candidates for social regulation.

Bibliography

• Devlin, P. The Enforcement of Morals OUP, 1965.

• Hart, H.L.A. Law, Liberty and Morality OUP, 1963

• Rappaport, E. (ed.) J.S. Mill: On Liberty Hackett Publishing Company, Indianapolis, 1978

• Roberts, J.M. Twentieth Century: the history of the world, 1901 to the present Allen Lane, London, 1999.

• Sandel, M. Justice Farrar, Straus and Giroux, NY, 2009.

• Warburton, N. Arguments for Freedom The Open University, Milton Keynes, 1999

• Warnock, M. (ed.)John Stuart Mill – Utilitarianism; On Liberty; Essay on Bentham together with selected writings of Jeremy Bentham and John Austin Fontana Press, London, 1962

• Wolff, J. ‘Mill: Liberty and Offence’ A211 Philosophy and the Human Situation CDA5589 The Open University, 2005