By Meera Joshi
At first glance, John Stuart Mill’s harm principle, which dictates that society can never interfere with conduct that regards only the agent or their voluntary associates, would seen to allow for the possibility of voluntary self-enslavement contracts. Freely choosing to become unfree might be a poor use of one’s liberty, but on what basis could society interfere? Curiously (but to his credit), Mill claims that such contracts are “null and void” and should not be enforced– yet it is unclear how this stance could be consistent with the harm principle (90). Mill’s own justification for this nullity is vague and even suggests an abstract or paternalistic approach to the problem, unsettling some of the core features of his utilitarianism. Despite his ambiguity, I argue that it is possible to understand Mill as consistent if we imagine liberty not as metaphysically inalienable, but simply as always linked to the utility of the individual.
- Overview of The Harm Principle
The harm principle is a two-step test to determine whether society should interfere with the conduct of an individual on utilitarian grounds. The first step is to determine who takes indirect, as opposed to direct, interest in a given action. By indirect interests, Mill means the “opinions of others” or their feelings and moral reactions to an individual, while direct interests concern an individual’s own “physical or moral” well-being, independent of others (i.e. excluding their own indirect interests in others) (15, 74). If the action in question only affects the direct interests of its agent, that action is termed self-regarding. There is an interpersonal variant of this: if the action affects the direct interests of others– but with their “free, voluntary, and undeceived consent”– the action belongs to an extension of the self-regarding category (15). Both self-regarding actions and their extended form among voluntary participants belong to domain of human liberty which cannot be interfered with.
Mill justifies his first step with claims concerning the utility of liberty, the most relevant being the anti-paternalistic claim that the individual has the greatest interest in their own well-being and should be allowed to reasonably pursue it (58). However, if the action affects the direct interests of others without their consent, then the action falls in the sphere of social actions, which requires the principle’s second step, which involves the question of whether “the general welfare”— or utility—“will or will not be promoted by interfering with [the action]” (72). In light of the utility of liberty, interference is only warranted when members of society would be harmed. Harm can generally be defined as a “perceptible hurt” to either society or an individual’s direct interests. Here, it is important to emphasize that, in Mill’s theory, harm is independent from subjective perspectives, like feelings of offense or moral preference (80, 81-82).
- Voluntary Self-Enslavement
In light of this principle, Mill’s stance against voluntary slave contracts is at the least odd if not blatantly inconsistent. An adequate justification would have to explain how this case can be reconciled with two general rules Mill sets out concerning contracts and liberty on utilitarian grounds. The first rule is that voluntary contracts, or “engagements” as Mill calls them, should be enforced by society (90). Contracts are formed on the basis of the liberty of multiple individuals to “regulate by mutual agreement such things as regard them jointly” with the additional security that the contract will be kept in future, even if a contractor changes their mind (99). The second general rule to which voluntary slave contracts are apparently an exception is the first maxim of the harm principle — that “[the individual’s] good is on the whole best provided for by allowing him to take his own means of pursuing it” (99). Mill’s own explanation for his claim attempts to address this: he argues that, although the initial free action of entering into the contract could hypothetically be allowed on the basis of this maxim (the liberty of self-regarding actions), the consequence of the action (loss of liberty in self-regarding actions) contradicts the original maxim, thus “[defeating]…the very purpose which is the justification of allowing him to dispose of himself” (99). He concludes that the validity of such a contract is inconsistent with his principle. While this argument makes sense intuitively, it appeals to logical consistency more than utility– an uncharacteristic move for Mill. Further, the notion that one cannot voluntarily exempt themselves from the harm principle’s protection invokes the suspicion that Mill might be advocating liberty as an inalienable right or else paternalistically endorsing it as intrinsic to happiness. In doing so, he would be contradicting the fundamental utilitarian and anti-paternalistic underpinnings of his theory respectively. Mill’s argument is in need of a more explicit appeal to utility.
- A Diachronic Account
Examining the voluntary slave contract temporally can help explain why the nullity of such contracts is in fact consistent with both Mill’s policy on contracts and the harm principle on utilitarian grounds. This approach isn’t as distant from Mill’s own argument as it might seem: at one point, he remarks that the voluntary slave contract lacks the “favour… afforded by his voluntarily remaining in it”— a vague phrase that is later clarified by Mill’s assertion that all contracts not concerning “money or money’s value” should allow for the liberty of retracting consent (99, 100). Together, these two assertions suggest that continual consent is required for the duration of nonmonetary contracts. As I will show in the following temporal explication, non-enforced slave contracts exemplify how this condition of continual consent works and how it relates to utility.
Consider the hypothetical case of rational adults X and Y. There are three points of time to consider:
T1, the formation of the contract, when X voluntarily contracts themselves into slavery to person Y.
T2, a period of time during which the engagements of the contract are kept.
T3, a moment at which the contract would need to be enforced in order to persist.
At T1, X performs the voluntary action of consenting to a become Y’s slave; actions that concern the direct interest of only free and consenting agents cannot be interfered with, and therefore society does nothing to interfere at T1. While Mill’s account might suggest that society interferes with the individual’s freedom by not allowing them to become a voluntary slave, society can only truly contradict this initial desire at a point temporally distinct from the formation of the contract. That is, society can only enter the picture once the contract needs enforcement to be maintained. This is consistent with the policy of non-enforcement of such contracts that Mill asserts, which does not imply that such contracts cannot be made, only that if made, will not be enforced. X is therefore able to pursue what they view as desirable at this specific moment: to enter into the contract. While they may desire that they should later be compelled to obey upon disobedience (as implied by agreeing to become a slave), such a future event is not one they can take direct interest in— it has no bearing on their current well-being. At most, their desire is a prospective and indirect moral preference, perhaps temporally analogous to the indirect interest others may take in a given individual’s actions, but which do not factor into the harm principle.
In the period of time represented by T2, X obeys Y according to their contract, and so there is no need for the contract to be enforced in order to persist. Exemplifying the condition of continual consent, a policy of non-enforcement actually ensures that the relation is consensual for its duration, because nothing is holding X to obedience except for the fact that they deem it desirable and therefore conducive to their happiness. Their liberty to obey is what allows them to be happy, suggesting the continued utility of liberty, even if its manifestation appears a bit odd here. Again, at this point in time, society has no reason to interfere because the relation between X and Y continues to consensually concern only their direct interests.
Now, suppose that X disobeys Y at T3, implying that enforcement would be necessary in order to maintain the contract. Such disobedience immediately indicates that their relationship is no longer consensual, and their conduct therefore now falls into the category of social actions, subject to interference if harm is dealt. Yet, because no harm is done, no interference is necessary, and the contract ends, unenforced. Clearly, non-enforcement contradicts X’s free choice at T1, yet it is obvious that not compelling X at T3 to obey their own T1 choice in no way lessens X’s current happiness. In fact, X’s free choice to disobey at T3 suggests that disobedience is desirable to them and that their idea of their own happiness has changed. Throughout this diachronic account, non-enforcement and the accompanying condition of continual consent simply allow X to freely pursue the means to their own happiness throughout its changing manifestations. Liberty therefore always has utility because, at any given moment in time, X never chooses to do something while simultaneously desiring to be coerced into not doing it.
From this explication of the consistency of the harm principle with non-enforcement of voluntary slave contracts, I suggest that Mill’s liberty is decidedly not, as some critics might suppose, an inalienable right on metaphysical or paternalistic grounds, but rather inalienable in a simply utilitarian sense — an individual never actually desires to alienate their liberty at any given point in time, as it is always conducive to an individual’s happiness to be free to pursue what they desire. While an individual’s future action may contradict their past free choice, such a contradiction is permissible insofar as it does no harm to others, for the individual is a “progressive being” who must be allowed to pursue their evolving understanding of happiness (14).
Mill, John Stuart. On Liberty, Utilitarianism, and Other Essays. Oxford: Oxford University Press, 2015.