Liberty

One of the central concerns of social and political philosophy has been the issue of what limits, if any, there are to the right of the state to restrict the "liberty" of its citizens. Unless one is convinced of the truth of anarchism, there are some actions with which the state may legitimately interfere, and unless one accords no value to personal liberty, there are some actions the state must leave to the discretion of the individual. One of the tasks of political philosophy is to develop and elaborate a theory to determine where these boundaries lie.

In his classical defense of liberalism—On Liberty—John Stuart Mill gave one influential answer to this question. The only reason that could justify the use of coercion against a person is to prevent harm to other people. Such a reason might not be decisive—it might be that the use of coercion would be ineffective or too costly or would violate the rights of privacy—but it brings the action in question within the scope of legitimate state power.

Other reasons, according to Mill, do not justify legal coercion. One cannot restrict someone's actions because they are harmful to that person; paternalism is not legitimate. One cannot restrict someone's actions because they are wrong or immoral (but not harmful to others); legal moralism is not legitimate. One cannot restrict someone's actions because his or her character would be improved by doing so; moral paternalism is not legitimate.

Obviously, a theory that puts such heavy weight on the notion of harm gives rise to disputes about the nature and limits of that notion. If conduct is offensive to others, does that count as harming them? If not, do we need a separate principle to justify prohibiting offensive conduct such as public nudity or racist graffiti? If we are competing for a job and you get it, am I harmed by this? Does only physical damage count as harm or emotional damage as well? Am I harmed by simply knowing that behind the walls of your house you are engaged in activities that I would find repulsive or wicked? If someone defaces the flag, is anyone harmed by this? If I consent to some action that is otherwise damaging to me, am I still harmed? Can I be harmed after my death—for example, by attacks on my reputation?

One of the most fully developed views that seeks to provide answers to these and similar questions is that of Joel Feinberg. He argues that any notion of harm that is going to play a role in answering normative questions will itself be normative in character. He accordingly defines the notion of harm in terms of a wrongful setback to a person's interests. To some extent, naturally, this shifts philosophical attention to the concept of interests.

The normative issue raised by paternalism is when, if ever, the state or an individual is entitled to interfere with a person for that person's good. Examples of laws that have been justified in paternalistic terms include requiring motorcyclists to wear helmets, forcing patients to receive blood transfusions against their wishes, or requiring individuals to save for their retirement (Social Security).

The reasons that support paternalism are those that support any benevolent action—promoting the welfare of a person. The reasons against are those that militate against any interference with the autonomy of individuals—respect for their desire to lead their own lives. Normative debates about the legitimacy of paternalism involve disputes about many issues including the nature of welfare (can we produce good for a person against that individual's preferences and evaluations?), the correctness of various normative theories (consequentialism vs. autonomy or rights-based theories), and the relevance of hypothetical consent (in Mill's famous example of the man walking across a bridge that, unknown to him, is about to collapse, we may stop him, since he would not want to cross the bridge if he knew its condition).

The issue of whether the state may enforce morality—the subject that was brought to philosophical prominence by the debate between Lord Devlin and H. L. A. Hart—is present in discussions of the legalization of homosexuality, pornography, surrogate motherhood, and active euthanasia. The focus of such discussion is not the harm of such activities but their immorality and whether if they are immoral that is sufficient reason for the state to proscribe them. Since it is clearly the case that one of the grounds for proscribing murder is its immorality, the question arises as to what it might mean to deny that the state should take morality into account in limiting liberty. The best answer is that we may distinguish within the immoral different realms—for example, matters having to do with rights as opposed to matters having to do with ideals of conduct. Those who are opposed to the enforcement of morality are really opposed to enforcing certain areas of morality. Much of the discussion goes on under the heading of the "neutrality" of the liberal state.

Anarchism; Consequentialism; Euthanasia; Feinberg, Joel; Hart, Herbert Lionel Adolphus; Liberalism; Mill, John Stuart; Paternalism; Rights; Social and Political Philosophy.

Acton, Lord. Essays in the History of Liberty. Edited by J. R. Frears. Indianapolis: Liberty Classics, 1985.

Berlin, Isaiah. Four Essays on Liberty. Oxford: Oxford University Press, 1969.

Devlin, P. The Enforcement of Morals. London: Oxford University Press, 1965.

Dworkin, G. "Paternalism." Monist 56 (1972): 64–84.

Feinberg, J. The Moral Limits of the Criminal Law. 4 vols. New York: Oxford University Press, 1984–1988.

Hart, H. L. A. Law, Liberty, and Morality. Stanford, CA: Stanford University Press, 1963.

Mill, J. S. On Liberty. London, 1959.

Miller, David, ed. Liberty. Oxford: Oxford University Press, 1991.

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