by Roger Kimball
Some time ago, I participated in a conference about “policing in an age of terror.” One big topic was the place of informed hunches in the armory of the police. Was it okay, or was it culpably racist, for the police to act on educated hunches when going about their jobs? Should they “profile” certain groups of people and, in some circumstances and in some neighborhoods, “stop and frisk” people they thought looked suspicious? Well, the heart, as Pascal famously assured us, has its reasons that reason does not know. About this, as about most things, Pascal was right. But what does it tell us about “rational hunches” or “policing in the age of terror?”
Before I endeavor to answer those impossible questions, I should acquaint you with my qualifications for intervening on this large topic. My short-form disclosure is: I have none. I am not a lawyer, judge, or police officer. I am not even an academic. In terms of qualifications, I am like the man on the Manhattan omnibus or subway — a chap I shall revert to later. That is, I bring no specialized or professional knowledge to the table, merely the advantages — if they are advantages — of commonplace sentiment.
Let me begin by acknowledging the air of paradox that surrounds the topic of the conference. “Rational Hunches.” Doesn’t that phrase express a paradox, not to say an oxymoron? The relevant sense of “hunch,” the Oxford English Dictionary informs us, refers to “a premonition or intuitive feeling.” Curiously, that sense of “hunch” is of relatively recent vintage. It isn’t listed in the main part of my edition of the OED; you have to look in the supplement to find it. But what business does a “premonition” or an “intuitive feeling” have consorting with the adjective “rational”: that which is based on reason, argument, and logic? Do we not usually, and rightly, oppose what is rational to what is intuitive, silently supplying the adverb “merely” before so cognitively challenged a mental operation? And do we not always, and rightly, do so when dealing with subjects as serious as law enforcement?
The honest answer is, not really. “Life,” as Samuel Butler observed, “is the art of drawing sufficient conclusions from insufficient premises.”
We do not like to admit that. In many ways, modern Western culture is also a Cartesian culture. We are rationalists and empiricists. Like the state of Missouri, we negotiate our way through the traffic of life with the challenge “Show me” announcing our progress.
Descartes wanted proofs that were so “clear and distinct” that they were immune to the corrosive interrogation of doubt. His method, he promised, would make man “the master and possessor of nature.” And have not science and technology gone a long way towards realizing that dream, silencing doubt in another, very practical way through the intoxicating blandishments of power and technological prowess? Where do hunches, guesses, intuitions, prejudices, and gut feelings fit into the world, according to Descartes? It is true that Descartes first conceived his scientific method after a series of dreams — “the most important thing in my life,” he said — and that this arch rationalist later made a pilgrimage to Our Lady of Loreto in gratitude for the insights vouchsafed him in those dreams. But that only shows that even Descartes was not consistently Cartesian.
It might seem that the meditations of a seventeenth-century French philosopher are pretty distant from the conundrums facing us in the twenty-first century. In some ways, this is true. But Descartes did an enormous amount to define the methods, goals, and ideals of scientific rationalism, a worldview that systematically deprecates the significance of any experience not amenable to rational analysis. Paul Valéry summed up the problem in his brief sketch for an essay on Descartes. Like many moderns, Valéry found himself bewitched by the heroic solipsism of Descartes’ formula, cogito ergo sum. Yet he knew that a corollary of that formula was a world in which “the word ‘knowledge’ is increasingly denied to anything which cannot be translated into figures.” Among other things, this meant that, as Valéry put it, “the truth for modern man, which is exactly related to his freedom of action over nature, seems more and more to be in opposition to everything that our imagination and our feelings would like to be true.” As Valéry understood, we owe our humanity not only to our ability to reason but also to our status as creatures of feeling, imagination, and moral responsibility. In the end, the idea that we are the “masters and possessors of nature” is a risible illusion bred by overweening cleverness. For ultimately, it is nature that masters and possesses us, a fact we deny to our intellectual peril and moral diminishment.
What has all of this to do with the law? For a first answer to that question, let’s broaden the field from hunches to those great underrated human resources, prejudice and the feelings of disgust and moral outrage. On those subjects, I can think of no better place to begin than with Martha Craven Nussbaum, who, among other attainments, is a professor of law, philosophy, classics, and divinity at the University of Chicago. In her book Hiding from Humanity: Disgust, Shame, and the Law and some related articles, Professor Nussbaum argues that “the law, most of us would agree, should be society’s protection against prejudice.”
Really? I suspect “most of us would agree” that the law ought to be society’s protection against crime. But perhaps Professor Nussbaum thinks that prejudice is itself a crime — though surely not all prejudice. Edmund Burke said that prejudice “renders a man’s virtue his habit.” He meant that if we have a predisposition — a prejudice — toward the right things, they more easily become second nature. Surely Professor Nussbaum would not wish for the law to protect us from that sort of prejudice. And it must be said that she herself is clearly prejudiced against anything she labels “conservative.” I doubt that she believes that the law should be society’s protection against prejudice directed at conservatives.
Professor Nussbaum rides into town like a moral Paul Revere, warning not that the British are coming but that there is a “remarkable revival” of shame and disgust in our society, especially as they impinge upon the law. Now, when I read that, I thought, “Nussbaum, on top of everything else, must be a student of Stephen Potter.” For anyone as intelligent as she could not really believe that shame and disgust are enjoying a renaissance in our culture. She must be employing a variation of a gambit Potter describes in his book Lifemanship, “Going One Better.” It works like this. First, you find out the quality for which an author is most famous, then you blame him for not having enough of it. An example from Lifemanship: “The one thing that was lacking, of course, from D. H. Lawrence’s novels, was the consciousness of sexual relationship, the male and female element in life.” Look around at our society: flip on the television; saunter down to your local newsstand; visit a local theater or museum; inspect the nose rings, the tongue or eyebrow or nipple studs that are so popular with the young and not-so-young today. One thing indisputably missing in our society is anything like a traditional sense of shame or disgust. So how clever of Professor Nussbaum to devote an entire book to the malignant presence of something that has all but disappeared.
Professor Nussbaum is particularly exercised by the sentences handed down by various courts, which involve some public declaration of the perpetrator’s wrongdoing. A child molester, for example, is required to post a sign on his property warning children to stay away. Another chap, convicted of larceny, is required to wear a shirt with the advice: “I am on felony probation for theft.” A drunk driver is made to sport a bumper sticker advertising the fact of his infraction to other motorists.
Professor Nussbaum approvingly quotes a spokesman from the American Civil Liberties Union who angrily objects to such punishments: “Gratuitous humiliation of the individual serves no social purpose at all . . . [a]nd there’s been no research to suggest it’s been effective in reducing crime.” To which one might reply that the humiliation was not “gratuitous” but, on the contrary, was meted out in response to a criminal violation. And as for the “research,” it doesn’t take much to tell you that, having been duly put on notice, the neighbors of that convicted child molester will keep a wary eye out for him, thus reducing the chance of a repeat performance. Likewise, the shopkeeper who espies the banner-wearing thief enter his store is sure to watch the till, once again reducing the chance that the crime will be repeated.
But Professor Nussbaum doesn’t confine herself to mere pragmatic issues, such as whether a given policy in fact reduces crime. Her objection is more fundamental. “Shaming penalties,” she notes, “encourage the stigmatization of offenders, asking us to view them as shameful.” Er, yes: they would have that effect, wouldn’t they? Hiding from Humanity is full of such near tautologies. You do something bad — something, in fact, that is shameful. The legal punishment calls attention to your bad, shameful action, partly in order to encourage you to reflect on your fault and partly to alert others to it. Is that a bad thing?
Professor Nussbaum brandishes the verb “stigmatize” early and often in this book. She doesn’t approve of stigmatizing people. Originally, a stigma was a mark burned into the skin of a criminal or slave. It has acquired an additional meaning: “A mark or token of infamy, disgrace, or reproach,” as my dictionary puts it. Professor Nussbaum several times raises the specter of unfairly stigmatizing innocent people or groups of people. She quotes A. Hitler on the Jews, for example. As you’d expect, he said some very unpleasant things that were definitely intended to stigmatize the Jewish people. But how about Joe, the convicted child molester, who moves in next door? A considerate judge has ordered him to post a sign on his front lawn advertising his crime. That sign is indeed “A mark or token of infamy, disgrace, or reproach,” and you can bet that it’s one for which the mothers in the neighborhood are grateful. Which brings us to something that gets lost in Professor Nussbaum’s discussion: the distinction between unfairly stigmatizing an innocent person or group of people and stigmatizing someone or some group because they deserve a mark or token of infamy, disgrace, or reproach. Of course, one wishes to avoid the former. Does that mean that we should, in principle, forswear the latter?
In any event, Professor Nussbaum has a deeper objection to penalties that shame a criminal. She thinks that calling attention to Joe’s penchant for sexually molesting little girls or boys is incompatible with the ideals of “human dignity and the equal worth of persons.” That’s another phrase Professor Nussbaum deploys regularly. She tells us, toward the beginning of her book, that her guiding motivation is to “construct a public myth of equal humanity, to substitute for other pernicious myths that have long guided us.” That sounds nice. Why not toss out all those “pernicious myths” that have guided humanity until fifteen minutes ago and sign on to the one that says “human dignity” and “equality”?
Professor Nussbaum speaks of the “equal worth of persons.” What do you suppose she means? In America, all citizens are meant to enjoy equality before the law. The figure of justice is often portrayed blindfolded because the scales she carries are meant to operate dispassionately, without the ballast of interest or parti pris. That is one sort of equality. Then there is what the philosopher Harvey Mansfield called “the self-evident half-truth that all men are created equal.” It’s only a half-truth because, except for the special case of our status as legal actors, nothing could be more obvious than the gross inequality of men. As the journalist William Henry put it in his book In Defense of Elitism (1994),
the simple fact [is] that some people are better than others — smarter, harder working, more learned, more productive, harder to replace. Some ideas are better than others, some values more enduring, some works of art more universal. Some cultures, though we dare not say it, are more accomplished than others and therefore more worthy of study.
Something similar can be said about “human dignity.” Professor Nussbaum finds a “deep tension” between the view that “law should shame malefactors and the view that law should protect citizens from insults to their dignity.” Let’s leave the question of whether the law really should concern itself with “insults” to a citizen’s dignity. Mightn’t it be argued that by calling attention to a criminal violation of human dignity, the law reinforces the ideal of human dignity?
In any event, all these cases concern the outer scaffolding of Professor Nussbaum’s argument. The inner core of her book is part of a revisionist morality, the emotional weather of which is summed up in a section that appears towards the end of her book: “The Case Against Disgust and Shame.”
As Professor Nussbaum acknowledges, shame and its more visceral cousin, disgust, are semantically amphibious emotions. They are moral as well as physical creatures, depending as much upon an idea of the good as upon physical revulsion. Shame is deeply bound up with modesty, another moral sentiment that inscribes itself in immediate physical reaction. Similarly, disgust is the body’s fire alarm for the noxious, but not merely the physically noxious. As William Ian Miller puts it in his book The Anatomy of Disgust (1997), disgust, although inculcated in toddlerhood, is “above all . . . a moral and a social sentiment.” Disgust highlights the good by violently excluding its opposite. Consequently, Miller argues, “contempt and disgust have their necessary role to play in a good, but not perfect, social order.” Utopia, having excluded evil, would have no call for disgust. As Miller notes, these observations are hardly new: “The entire Latin Christian discourse of sin depended on the conceptualization of sin and hell as raising excremental stenches and loathsome prospects.”
Professor Nussbaum wants us to get beyond all this. She acknowledges that “the person who is utterly shame-free is not a good friend, lover, or citizen,” but she wants to privatize shame, as it were, to disenfranchise it from any role in public life. Similarly, Professor Nussbaum acknowledges that disgust may have played “a valuable role in our evolution” — making us recoil from various toxic elements in our environment; she even admits that it may continue to be a valuable guide in daily life. But because the “thought-content” of disgust is “typically unreasonable, embodying magical ideas of contamination, and impossible aspirations to purity, immortality, and nonanimality,” disgust should “never be the primary basis for rendering an act criminal, and should not play either an aggravating or a mitigating role in the criminal law where it currently does.”
Another way of putting this is to say that Professor Nussbaum wishes completely to emancipate law from the idea of sin. From a traditional point of view, of course, the law is seen as being rooted in a moral vision, which includes a recognition of sin: that which (as the etymology of the word suggests) sunders us from the whole. We might hope that punishment will deter crime, prevent crime, or reform or reeducate the criminal, but those are pragmatic (and chiefly modern) justifications for punishment. The specifically moral justification for punishment is, as it always has been, retribution, an effort to redress a moral or spiritual violation. Shame, which declares our distance from the moral good, is often an important ingredient in retribution. As the British jurist Patrick Devlin noted in The Enforcement of Morals (1965), “the complete separation of crime from sin . . . would not be good for the moral law and might be disastrous for the criminal.” Why? Because without the idea of sin, moral life would be an empty calculus of pain and pleasure. “What makes a society of any sort,” Lord Devlin noted, “is a community of ideas, not only political ideas but also ideas about the way its members should behave and govern their lives; these latter ideas are its morals.”
Sin — like disgust, like shame — is such an irrational idea, so hard to get hold of “theoretically.” Professor Nussbaum finds disgust “perplexing in theory”: “the theoretical literature,” she says, reveals “considerable debate about whether shame and disgust ought to play the roles they currently play” in the moral and legal economy of life. (“That’s all very well in practice,” says the economist in the old joke, “but how does it work out in theory?”) “To appeal to disgust,” Professor Nussbaum concludes, “seems to be just to say ‘I don’t like that,’ and stamp one’s foot. No reasons are advanced that would make debate about such laws a real piece of public persuasion.”
Professor Nussbaum is certainly right that feelings of disgust, like feelings of shame, are extra-, if not irrational: we don’t argue ourselves into disgust or shame; we feel it immediately. Eighteen middle-eastern chaps commandeer a few jet airliners and fly them into the World Trade Center and the Pentagon, killing thousands, causing several billion dollars worth of damage, and traumatizing the civilized world. Many people said, “I don’t like that” and stamped the ground a bit.
Professor Nussbaum is deeply suspicious of such feelings. She sharply criticizes the physician-philosopher Leon Kass for advocating the “wisdom of repugnance” — the wisdom of disgust and revulsion — because our disgust might be misplaced. She is even more severe about Lord Devlin, who argued that “for the difficult choice between a number of rational conclusions, the ordinary man has to rely upon a ‘feeling’ for the right answer. Reasoning will get him nowhere.”
A good conservative, Lord Devlin was a minimalist when it came to the law’s province. “In any new matter of morals,” he argued, “the law should be slow to act.” Advocating “toleration of the maximum individual freedom that is consistent with the integrity of society,” he noted that “the law is concerned with the minimum and not with the maximum”: “the criminal law is not a statement of how people ought to behave; it is a statement of what will happen to them if they do not behave.” At the same time, Lord Devlin recognized that “not everything is to be tolerated. No society can do without intolerance, indignation, and disgust.”
Every moral judgement, unless it claims a divine source, is simply a feeling that no right-minded man could behave in any other way without admitting he was wrong. It is the power of common sense and not the power of reason that is behind the judgements of society.
Devlin does not, of course, argue that feelings of disgust are an infallible sign of moral turpitude. But the fact that we sometimes err does not mean that we should wish to do without this important instrument of moral discrimination.
Professor Nussbaum wants to get beyond all such considerations. She is very impatient with the “power of common sense,” for example. It is so often insufficiently enlightened, insufficiently progressive, and insufficiently in agreement with the opinions of people like Martha Nussbaum. Lord Devlin appealed to the moral feeling of the ordinary man, “the man in the Clapham [or indeed the Manhattan] omnibus.” Professor Nussbaum doubts “whether the disgust of the ‘average’ man would ever be a reliable test for what might be legally regulable.”
So maybe many of the things that the inherited moral wisdom of millennia have taught us to find disgusting — and to which society has responded with various legal prohibitions — need to be reevaluated? What do you think? Take necrophilia. Professor Nussbaum finds this a thorny problem. Who, after all, is harmed in the transaction? Professor Nussbaum wonders “whether necrophilia ought, in fact, to be illegal.” She acknowledges that there is “something unpleasant” about a person who rapes a corpse, but it is “unclear” to her whether such conduct should be “criminal.” Possibly, since a corpse is generally the property of its family, there should be “some criminal penalties” where “property violations” are involved, but otherwise not. As the legal commentator F. H. Buckley observed in an essay about the morality of emotion, “those who fail to recognize their repugnance to evil can become its willing accessories.”
Professor Nussbaum describes her intellectual-political pedigree as “less Millian than Whitmanesque.” She may be right. I think, for example, of “Song of Myself,” which has many Nussbaumian touches. Nussbaum: “[W]e wash our bodies, seek privacy for urination and defecation, cleanse ourselves of offending odors with toothbrush and mouthwash, sniff our armpits when nobody is looking, check in the mirror to make sure that no conspicuous snot is caught in our nose-hairs.” Whitman: “The scent of these arm-pits is aroma finer than prayer,/ This head is more than churches or bibles or creeds./ . . . I dote on myself . . . . there is that lot of me, and all so luscious . . .”).
But if there is a lot of Whitman blowing through Professor Nussbaum’s book, there is also a good deal of Mill. I am thinking especially of the Mill of On Liberty, the Mill who advocated “new and original experiments in living” and argued that the sole justification society had for interfering with an individual “in the way of compulsion and control” — whether by “physical force in the form of legal penalties or the moral coercion of public opinion” — was “self-protection.” If the individual is not harming others, then (says Mill) we have to leave him alone: “His own good, either physical or moral, is not a sufficient warrant” for interference. Mill’s libertarian doctrine is our modern gospel. Professor Nussbaum is part of a large choir singing its praises.
But the fact that Mill’s doctrine is popular does not mean that it is cogent. As James Fitzjames Stephen pointed out in Liberty, Equality, Fraternity (1873), Mill’s teaching would “condemn every existing system of morals.”
Strenuously preach and rigorously practise the doctrine that our neighbor’s private character is nothing to us [Stephen explained], and the number of unfavorable judgments formed, and therefore the number of inconveniences inflicted by them can be reduced as much as we please, and the province of liberty can be enlarged in corresponding ratio. Does any reasonable man wish for this? Could anyone desire gross licentiousness, monstrous extravagance, ridiculous vanity, or the like, to be unnoticed, or, being known, to inflict no inconveniences which can possibly be avoided?
As Stephen dryly observes, “the custom of looking upon certain courses of conduct with aversion is the essence of morality.” But it is part of Professor Nussbaum’s brief — as, in a way, it was of Mill’s — to encourage us to dispense with moral aversion, of which shame and disgust are prominent allotropes.
One of the oddest features of Hiding from Humanity is Professor Nussbaum’s recurring argument that the emotions of shame and disgust encourage us to ignore or discount our mortality, our incompleteness, and our animality. No doubt Professor Nussbaum has managed to embrace her own animality without the benefit of shame or disgust. But for most of us, the emotions of shame and disgust are vivid reminders of our status as imperfect creatures, fragile, animal, and therefore mortal.
This is something embodied the world over in the idea of taboo, a concept with deep connections to the ideas of shame and disgust. These are insights we arrive at not by ratiocination but by feeling, indeed, by something like a hunch. As the philosopher Leszek Kolakowski has noted, “We do not assent to our moral beliefs by admitting ‘this is true,’ but by feeling guilty if we fail to comply with them.” What we are dealing with, he points out, is not an intellectual performance but “an act of questioning one’s own status in the cosmic order, . . . an anxiety following a transgression not of a law but of a taboo.” Professor Nussbaum wants us to “discard the grandiose demands for omnipotence and completeness that have been at the heart of so much human misery.” Good idea! But shame and disgust are accomplices, not impediments, to that attack on hubris.
But let me return to Mill and Stephen. The subject of Stephen’s book is not only the libertarian philosophy of John Stuart Mill but also “the doctrines which are rather hinted at than expressed by the phrase ‘Liberty, Equality, Fraternity. ’” Although that phrase had its origin in the French Revolution, Stephen noted, it nonetheless had come to express “the creed of a religion” — one “less definite than most forms of Christianity, but not on that account the less powerful.” Indeed, the motto “Liberty, Equality, Fraternity” epitomized “one of the most penetrating influences of the day,” namely the “Religion of Humanity” — the secular, socialistic alternative to Christianity put forward in different ways by thinkers like Auguste Comte, Jeremy Bentham, and John Stuart Mill — not to mention such latter-day heirs as John Rawls and Martha Nussbaum. “It is one of the commonest beliefs of the day,” Stephen wrote, “that the human race collectively has before it splendid destinies of various kinds, and that the road to them is to be found in the removal of all restraints on human conduct, in the recognition of a substantial equality between all human creatures, and in fraternity in general.”
The phrase “Liberty, Equality, Fraternity” suggests the immense rhetorical advantage that liberalism begins with. One can hardly criticize the slogan without arousing the suspicion that one must be a partisan of oppression, servitude, and dissension. “Liberty,” Stephen notes, “is a eulogistic word.” Therein lies its magic. Substitute a neutral synonym — “permission,” for example, or “leave” (as in “I give you leave to go”) — and the spell is broken: the troops will not rally. It is the same with equality and fraternity. The eulogistic aspect of liberalism means that its critics are practically required to begin with an apology. So it is hardly surprising that Stephen stresses at the beginning of his book that he is “not the advocate of Slavery, Caste, and Hatred” and that there is a sense in which he, too, can endorse the phrase “liberty, equality, fraternity.”
Stephen begins by pointing out that Mill and other advocates of the Religion of Humanity have exaggerated the advantages and minimized the disadvantages that these qualities involve. For one thing, taken without further specification, “liberty, equality, fraternity” are far too abstract to form the basis of anything like a religion. They are also inherently disestablishing with regard to existing social arrangements; that indeed is one reason they exert such great appeal for the radical sensibility. Take Mill’s doctrine of liberty, which boils down to the exhortation: Let everyone please himself in any way he likes so long as he does not hurt his neighbor. According to Mill, any moral system that aimed at more — that aimed, for example, at improving the moral character of society at large or the individuals in it — would be wrong in principle. (Not that Mill held to this radical doctrine consistently. In a letter of 1829, for example, Mill writes, in direct contradiction to the position he put forward in On Liberty, that “government exists for all purposes whatever that are for man’s good: and the highest and most important of these purposes is the improvement of man himself as a moral and intelligent being.”)
The great pragmatic lesson to be drawn from Liberty, Equality, Fraternity concerns the relation between freedom and power. “Power,” Stephen insists, “precedes liberty” — that is, “liberty, from the very nature of things, is dependent upon power; and . . . it is only under the protection of a powerful, well-organized, and intelligent government that any liberty can exist at all.” It is for this reason that it makes no sense to ask whether liberty tout court is a good thing. The question whether liberty is a good or bad thing, Stephen writes, “is as irrational as the question whether fire is a good or bad thing. It is both good and bad according to time, place, and circumstance.” As Gertrude Himmelfarb notes, while we may have learned Lord Acton’s dictum that absolute power corrupts absolutely, we have not yet learned that “absolute liberty may also corrupt absolutely.” Mill’s failure to recognize these truths endows his doctrine of liberty with extraordinary malleability. It also infuses that doctrine with an air of unreality whenever it approaches the problem of freedom in everyday life. It is axiomatic with Mill that “society has no business as society to decide anything to be wrong which concerns only the individual.” It follows, Mill writes, that “fornication, for example, must be tolerated and so must gambling.” But should a person be free to be a pimp? Or to keep a gambling house? Mill thinks these are exceptionally difficult questions:
Although the public, or the State are not warranted in authoritatively deciding, for purposes of repression or punishment, that such or such conduct affecting only the interests of the individual is good or bad, they are fully justified in assuming, if they regard it as bad, that its being so or not is at least a disputable question: That, this being supposed, they cannot be acting wrongly in endeavoring to exclude the influence of solicitations which are not disinterested, of instigators who cannot possibly be impartial — who have a direct personal interest on one side, and that side the one which the State believes to be wrong, and who confessedly promote it for personal objects only.
To which Stephen replies: “There is a kind of ingenuity which carries its own refutation on its face. How can the State or the public be competent to determine any question whatever if it is not competent to decide that gross vice is a bad thing? I do not,” Stephen continues,
think the State ought to stand bandying compliments with pimps. “Without offence to your better judgment, dear sir, and without presuming to set up my opinion against yours, I beg to observe that I am entitled for certain purposes to treat the question whether your views of life are right as one which admits of two opinions. I am far from expressing absolute condemnation of an experiment in living from which I dissent, . . . but still I am compelled to observe that you are not altogether unbiased by personal considerations. . . .” My feeling is that if society gets its grip on the collar of such a fellow it should say to him, “You dirty rascal, it may be a question whether you should be suffered to remain in your native filth untouched, or whether my opinion about you should be printed by the lash on your bare back. That question will be determined without the smallest reference to your wishes or feelings; but as to the nature of my opinion about you, there can be no question at all.”
The contrast of tone between Mill and Stephen could not be more graphic. And here we approach a subject that has become almost undiscussable. As Stephen noted in his letters, there was a peculiar “want of virility” about Mill. In part, it was a matter of abstractedness: Mill seemed to him “comparable to a superlatively crammed senior wrangler, whose body has been stunted by his brains.” He was “too much a calculating machine and too little of a human being.” But besides abstractedness, there was also an element of what Leslie Stephen called “feminine tenderness” about Mill: his character, his prose, and his doctrines. It is not, I think, coincidental that one senses something similar in Rousseau: a smothering fussiness, grown rancorous and paranoid in Rousseau’s case, merely querulous and impertinent in Mill’s. The “feminization of society” we occasionally read about is, in this sense, a coefficient of the triumph of liberalism. Its distrust of masculine directness is the other side of its inveterate impulse to moralize all social activity.
This stereoscopic quality in Mill’s doctrine of liberty shows itself in other ways as well. One moment, it seems to license unrestrained liberty; the next, it seems to sanction the most sweeping coercion. When Stephen says that “the great defect” of Mill’s doctrine of liberty is that it implies “too favorable an estimate of human nature,” we know exactly what he means. Mill writes as if people, finally awakened to their rational interests, would put aside all petty concerns and devote themselves to “lofty-minded” relationships and the happiness of mankind in general. “He appears to believe,” Stephen writes with barely concealed incredulity, “that if men are all freed from restraints and put, as far as possible, on an equal footing, they will naturally treat each other as brothers and work together harmoniously for their common good.” At the same time, Mill’s estimation of actually existing men and women is very unfavorable. “Ninety-nine in a hundred,” he tells us, act in ignorance of their real motives. He is always going on about “wretched social arrangements,” the bad state of society, and the general pettiness of his contemporaries. In this respect, too, he resembles Rousseau, who, late in life, confessed that “I think I know man, but as for men, I know them not.”
In fact, when it comes to his view of mankind, Mill vacillates between two caricatures: a flattering one and a repulsive one. The friction between the two produces an illusion of benevolence; that illusion is at the heart of liberalism’s appeal. Yet what Mill describes is an ideal that, in proportion as it is realized, tends to grow into its opposite. In Utilitarianism, Mill writes that “as between his own happiness and that of others, justice requires [everyone] to be as strictly impartial as a disinterested and benevolent spectator.” Stephen comments: “If this be so, I can only say that nearly the whole of nearly every human creature is one continued course of injustice, for nearly everyone passes his life in providing the means of happiness for himself and those who are closely connected with him, leaving others all but entirely out of account.” And this, Stephen argues, is as it should be, not merely for prudential but for moral reasons:
The man who works from himself outwards, whose conduct is governed by ordinary motives, and who acts with a view to his own advantage and the advantage of those who are connected with himself in definite, assignable ways, produces in the ordinary course of things much more happiness to others . . . than a moral Don Quixote who is always liable to sacrifice himself and his neighbors. On the other hand, a man who has a disinterested love of the human race — that is to say, who has got a fixed idea about some way of providing for the management of the concerns of mankind — is an unaccountable person . . . who is capable of making his love for men in general the ground of all sorts of violence against men in particular.
“The real truth,” Stephen concludes, “is that the human race is so big, so various, so little known, that no one can really love it.”
Mill’s refusal to recognize this is a standing invitation to irony. His attitude reminds one of W. H. Auden’s version of the social worker’s ethic: “We’re all on earth to help others. What on earth the others are here for, we don’t know.” Truth in advertising should have required On Liberty to begin with the words, “Once upon a time. . . .” Although written by a learned man and talented philosopher, there is a sense in which it really belongs more to the genre of fantasy than moral philosophy. It says a number of emollient things about human capabilities but outlines a moral-political system more or less guaranteed to stymie those capabilities.
Consider Mill’s paeans to the value of eccentricity, diversity, and originality as solvents of “the tyranny of opinion.” Doubtless, he is sincere in his eulogies. But as we can see from looking around at our own society, the growth of Mill’s equalizing liberty always tends to homogenize society and hence reduce the expression of genuine originality and individuality. Mill’s philosophy declares originality desirable even as it works to make it impossible. Uniformity becomes the order of the day. In a memorable analogy, Stephen says that Mill’s notion of liberty as a politically “progressive” imperative in combination with his demand for originality is “like plucking a bird’s feathers in order to put it on a level with beasts, and then telling it to fly.” Furthermore, by confounding, as Stephen puts it, the proposition that “variety is good with the proposition that goodness is various,” Mill’s teaching tends to encourage a shallow worship of mere variety, diversity for its own sake with no regard for value of the specific “diversities” being celebrated. This is obviously a lesson we still have not learned. Notwithstanding the slogans of our cultural commissars, “diversity” itself is neither good nor bad. Signs announcing a “commitment to diversity” that one sees at college campuses and businesses across the country are so nauseating precisely because they are little more than badges declaring the owner’s virtue. The odor of political correctness surrounding them them is the odor of unearned self-satisfaction.
In On Liberty, Mill says that “exceptional individuals . . . should be encouraged in acting differently from the mass” in order that they might “point the way” for the rest of us. But Stephen is right that
if this advice were followed, we should have as many little oddities in manner and behaviour as we have people who wish to pass for men of genius. Eccentricity is far more often a mark of weakness than a mark of strength. Weakness wishes, as a rule, to attract attention by trifling distinctions, strength wishes to avoid it. Originality consists in thinking for yourself, not in thinking differently from other people.
That’s my emphasis on that excellent concluding observation.
It is part of Mill’s polemical purpose to claim that society hitherto had persecuted eccentricity out of fear and small-mindedness. But again, Stephen is surely right that
it would be hard to show that the great reformers of the world have been persecuted for “eccentricity.” They were persecuted because their doctrines were disliked, rightly or wrongly as the case may be. The difference between Mr. Mill’s views and mine is that he instinctively assumes that whatever is is wrong. I say, try each case on its merits.
Stephen’s recourse to the particular — he would have cited his allegiance to utilitarian principles of expediency — infuses his discussion of the relation between liberty and power with robust common sense. It also sets it sharply at odds with Mill’s treatment of those issues. In one of the most famous passages in On Liberty, Mill outlines what he thinks are the limits of acceptable interference in an individual’s “liberty of action.”
The object of this essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties or the moral coercion of public opinion. That principle is that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.
Mill adds various qualifications. He notes, for example, that this license applies only to “human beings in the maturity of their faculties,” not to “children or young persons below the age which the law may fix as that of manhood or womanhood.” He further notes, in a passage that has caused great hand-wringing among his disciples, that “despotism is a legitimate form of government in dealing with barbarians, provided the end be their improvement.” But — and here is the nub of his argument restated — “as soon as mankind have attained the capacity of being guided to their own improvement by conviction or persuasion (a period long since reached in all nations with whom we need here concern ourselves), compulsion is no longer admissible as a means to their own good and is justifiable only for the security of others.” Consequently, for Mill, “the appropriate region of human freedom [demands] absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological.”
Mill’s description of his “one very simple principle” shows the extent to which his liberalism rests, as the philosopher Roger Scruton put it in The Meaning of Conservatism, on a “generalization of the first-person point of view.” His apotheosis of the “I” is also a movement of abstraction. One of the first things one notices about Mill’s “individuals” is how little air there is around them. They exist as flat, abstract cut-outs. Arguing for the relativity of moral values, Mill notes that “the same causes which make [someone] a churchman in London would have made him a Buddhist or a Confucian in Peking.” But this is to take an entirely disembodied view of the relevant “causes.” Part of what makes (or once made) someone a churchgoer in London is living in London; that is not an “accidental” datum that can be subtracted without cost from an individual’s identity. Our culture and history are essential ingredients; remove them and you remove the individual. Individuality is not fungible.
Mill’s assumptions about the nature of individuality stand at the heart of his liberalism. They also highlight what is most problematic about it. In the first place, it is by no means clear that we have knowledge (in Stephen’s paraphrase) of any “very simple principles as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control.” Mill’s bland language conceals an extraordinary, and completely unjustified, presumption. In the second place, Stephen notes, Mill’s famous distinction between “self-regarding” and “other-regarding” acts is “radically vicious. It assumes that some acts regard the agent only and that others regard other people. In fact, by far the most important part of our conduct regards both ourselves and others.
As Stephen observes, “men are so closely connected together that it is quite impossible to say how far the influence of acts apparently of the most personal character may extend.” The splendid isolation that Mill’s imperative requires is a chimera. Individuals exist not in autonomous segregation but in a network of relationships. Thus it is, as Stephen argues, that
every human creature is deeply interested not only in the conduct, but in the thoughts, feelings, and opinions of millions of persons who stand in no other assignable relation to him than that of being his fellow-creatures. A great writer who makes a mistake in his speculations may mislead multitudes whom he has never seen. The strong metaphor that we are all members one of another is little more than the expression of a fact. A man would be no more a man if he was alone in the world than a hand would be a hand without the rest of the body.
By broadly excluding the sanctions not only of “legal penalties” but also of “the moral coercion of public opinion,” Mill renders his notion of liberty fantastic.
When it comes to education, Mill admits that society must exert a moral influence on the young. But he then argues that, because society enjoys moral authority over the young, it must not presume to dictate the behavior or shape the manners of adults. But how can this be? How, Stephen asks, “is it possible for society to accept the position of an educator unless it has moral principles on which to educate? How, having accepted that position and having educated people up to a certain point, can it draw a line at which education ends and perfect moral indifference begins?” In fact, Stephen argues, “If people neither formed nor expressed any opinions on their neighbours’ conduct except in so far as that conduct affected them personally, one of the principal motives to do well and one of the principal restraints from doing ill would be withdrawn from the world.”
Some of Mill’s qualifications concede something to common sense, but they do so at the cost of turning his “one very simple principle” into a vacuous cliché. “Either,” Stephen observes, Mill means that “superior wisdom is not in every case a reason why one man should control another — which is a mere commonplace — or else [he] means that in all the countries which we are accustomed to call civilised the mass of adults are so well acquainted with their own interests and so much disposed to pursue them that no compulsion or restraint” is ever justified, which is incredible. It is precisely this oscillation between the commonplace and the fantastic that has made Mill’s liberalism such a durable commodity. Its radical promise is hedged by common sense qualifications that can be wheeled out when objections are raised and then promptly retired when the work of remaking society is meant to proceed.
Stephen is quick to admit that “if Mr. Mill had limited himself to the proposition that in our own time and country it is highly important that the great questions of morals and theology should be discussed openly and with complete freedom from all legal restraints, I should agree with him.” He agrees, too, that “neither legislation nor public opinion ought to be meddlesome” and that “those who have due regard to the incurable weaknesses of human nature will be very careful how they inflict penalties upon mere vice, or even upon those who make a trade of promoting it, unless special circumstances call for their infliction.” But he goes on to note that it is “one thing . . . to tolerate vice so long as it is inoffensive, and quite another to give it a legal right not only to exist, but to assert itself in the face of the world as an ‘experiment in living’ as good as another, and entitled to the same protection from the law.” No doubt “the busybody and world-betterer who will never let things alone” is a “contemptible character.” But, Stephen continues, “to try to put [him] down by denying the connection between law and morality is like shutting all light and air out of a house in order to keep out gnats and blue-bottle flies.”
Mill’s “one very simple principle” depends on a variety of questionable assumptions about human nature and the way moral life ought to be conducted. Above all, it depends on a notably anemic view of moral life: one in which the sociocultural fabric that gives body to freedom is redefined as the enemy of freedom and the actual process of moral choice is turned into a process of frigid ratiocination. Mill’s view of liberty is at once far too simplistic and far too rigorous. It is simplistic in its demonization of the customary and conventional; it is overly rigorous in its demand that moral choices be arrived at through “the collision of adverse opinions.” “On no other terms,” Mill says, “can a being with human faculties have any rational assurance of being right.”
Mill argues that to deny this — to hold that sanctions, even the sanctions of negative public opinion, ought to be otherwise enjoined — “is to assume our own infallibility.” But this is surely not the case. As Stephen points out, “the incalculable majority of mankind form their opinions” not by a process of ratiocination but out of a network of transmitted custom, prejudice, and conventional practice. “Doctrines come home to most people in general, not if and in so far as they are free to discuss all their applications, but if and in so far as they happen to interest them and appear to illustrate and interpret their own experience.” Furthermore, on the issue of infallibility, Stephen points out that there are innumerable propositions about which we have rational assurance, even though we may not claim infallibility. The fact that we might be wrong says nothing against this, as Mill’s own work in logic and probability ought to have reminded him. (Abstract possibility is always a cheap commodity.) Rational assurance is not the same as perfect certitude. “There are plenty of reasons,” Stephen observes, “for not forbidding people to deny the existence of London Bridge and the river Thames, but the fear that the proof of those propositions would be weakened or that the person making the law would claim infallibility is not among the number.” Mill argued that programmatic support for “the collision of adverse opinions” ultimately helps to secure “rational assurance.” Its real results, however, have been intellectual and moral anomie. As Gertrude Himmelfarb noted with respect to this side of Mill’s teaching, “by making truth so dependent upon error as to require not only the freest circulation of error but its deliberate cultivation, [Mill] reenforced the relativism of later generations.”
Mill hoped that his regime of liberty would replace the reign of prejudice with the reign of reason. In fact, it has had the effect of camouflaging prejudices with rational-sounding rhetoric. The effort to unseat customary practice and belief has resulted, not, as Mill predicted, in encouraging a drift toward unanimity but in increasing chaos. Nor is this surprising. As Stephen noted, “the notorious result of unlimited freedom of thought and discussion is to produce general scepticism on many subjects in the vast majority of minds.” Such are the paradoxes generated by Mill’s liberalism.
Today, we are living with the institutionalization of those paradoxes — above all, perhaps, the institutionalization of the paradox that in aiming to achieve a society that is maximally tolerant, we at the same time give (in the philosopher David Stove’s words) “maximum scope to the activities of those who have set themselves to achieve the maximally intolerant society.” The activities of the American Civil Liberties Union, for example, daily bear witness to the hopeless muddle of this anchorless liberalism. Maximum tolerance, it turns out, leads to maximum impotence. The refusal to criticize results in moral paralysis. That paralysis is the secret poison at the heart of Mill’s liberalism.
Stephen noted that Mill’s “very simple principle” — the principle that coercive public opinion ought to be exercised only for self-protective purposes — was “a paradox so startling that it is almost impossible to argue against.” He was right. As the historian Maurice Cowling observed,
to argue with Mill, in Mill’s terms, is to concede defeat. Rational does not have to mean conclusions reached by critical self-examination. Prejudice may reasonably be used to mean commitments about which argument has been declined, but to decline argument is not in itself irrational. Bigotry and prejudice are not necessarily the best descriptions of opinions which Comtean determinism has stigmatized as historically outdated.
Mill claimed a monopoly on the word “rational.” So long as that monopoly remains unchallenged, our paralysis will be complete. The antidote to the moral helplessness that Mill’s liberalism generates is not to be found by digging deeper in the trench of liberal rationalization. On the contrary, it begins with the forthright recognition that no “one very simple principle” can relieve us of the duties we owe to the inhabited world that we, for this brief while, share with many others. I do not know whether Mill ever had occasion to offer an opinion about Pascal. Perhaps he would have agreed that “The heart has its reasons that reason does not know.” If so, Mill would doubtless have dismissed those unproven reasons as shadows cast by prejudice, custom, and convention, as unworthy intrusions into the real business of life, especially where that business involved the operation of the law. But in this, as in so much else, the chap on the Manhattan or Clapham omnibus is a better guide than John Stuart Mill.
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Roger Kimball is editor and publisher of The New Criterion and the president and publisher of Encounter Books. He is the author and editor of many books, including The Fortunes of Permanence: Culture and Anarchy in an Age of Amnesia (St. Augustine’s Press), The Rape of the Masters (Encounter), Lives of the Mind: The Use and Abuse of Intelligence from Hegel to Wodehouse (Ivan R. Dee), and Art’s Prospect: The Challenge of Tradition in an Age of Celebrity (Ivan R. Dee). Most recently, he edited and contributed to Where Next? Western Civilization at the Crossroads (Encounter) and contributed to Against the Great Reset: Eighteen Theses Contra the New World Order (Bombardier).
Victor Davis Hanson is a distinguished fellow of the Center for American Greatness and the Martin and Illie Anderson Senior Fellow at Stanford University’s Hoover Institution. He is an American military historian, columnist, a former classics professor, and scholar of ancient warfare. He has been a visiting professor at Hillsdale College since 2004.
