HTOP and TOM
Mill identified a number of problems with how laws are made:
They are based on the likings and dislikings of society rather than logic or rationality. They supress the minority and are made by the majority or the most powerful individuals.
There are also problems with society in that there is no individuality as everyone is conformist and there is a growing 'collective mediocrity'
In order to deal with these issues Mill says we need eccentric people with increased individuality. We need to allow people to do or be what they want and remove the influence of custom to increase freedom. laws need to be made based upon rational thinking.
Exceptions to the Harm Principle
Mill says that society can interfere with in individual by legal penalties or public opinion.
The only reason that someone should be able to hold power over another individual is to prevent them from harming other people. Putting power over someone bcause you thing that they may hurt themselves is not a good enough reason.
Mill rules out force being used to prevent people harming themselves but says it is exceptable to attempt to prevent them doing this by reasoning and pursuading.
Mill says that Barbarians, children and adults in need of care are all exempt from the Harm to others principle. It is only supposed to apply to people in the maturity of their faculties.
He claims that if people do not have the ability to progress themselves then they need protecting from themselves. Before the harm principle can be applied to a nation or people they must be capable of being developed by free and equal discussion.
What he means by harm
Encroachment on their rights: eg. Detention without trial or trespass
Infliction on them of any loss or damage: eg. theft or property damage
Falsehood or duplicity in dealing with them: eg. blackmail
Unfair use of an advantage over another: eg. cheating
Selfish abstinence from defending them against injury: eg. any omission
Mill defines self regarding actions as being things which directly effect you, and only you and doesnt effect others.
Everything will indirectly effect others but this is not what he means he is merely concerend with who it effects in the first instance.
There are 3 regions of human liberty Mill wishes to defend:
Conscience- freedom of thought and discussion- the freedom to be able to think what you like and to express it.
Taste and pursuite: freedom of action- to be able to DO what you want.
To do what you want in a group if everyone in the group is concenting
Mill shows how when in a society people are bound to observe a line of conduct toward the rest as they all should abide by the same rules. This conduct consits of not injuring the interests of another (breaching their rights)
He argues that there should be 'perfect freedom, legan and social, to do the action and stand the consequence' of self-regarding actions
Mill and negative freedom
negative liberty = the right and ability to say no
negitive freedom = lack of forces which prevent you from doing whatever you want.
positive freedom = freedom to do something rather than freedom from inteference. (forcing a child to go to school- pointing out what is best for you)
Mill defined negitive freedom as the only freedom which deserves a name. He is seen to be in favour of negative freedom with his harm to others principle as he wants as little restriction on action as possible.
Negative freedom is defended by Locke as being a natural right. Noone ought to harm the life liberty or property of another as we are all gods creation and in doing so we are harming god.
Mill disagrees that negative freedom is a natural right.
Bentham defends negitive freedom using a quantitative account of utilitarianism- negitive freedom is good as it can allow for the greater good for the greatest number of people. Mill on the other had uses a qualitative account saying 'it is better to be a human being dissatisfied than a pig satisfied'
Mill justifies his HTOP by utilitarian account saying that utility is the ulitmate appeal and the most important thing; but it 'must be utility in the largest sense, grounded on the permanent interests of an as a progressive being'