In On Liberty, Mill argued that the only acceptable reason for interfering with the freedom of another person was to prevent harm, either in self defence or on behalf of a third party; interfering to prevent harm to the person whose freedom would be curtailed would not meet this condition.
In Utilitarianism, Mill argued that morality (and to some extent public policy) should be guided by the principle of bringing the greatest happiness to the greatest number of people.
On the face of it, those two ideas can conflict. Arguably, the case has to be made that they can be reconciled; how can any collective weighing of happiness influence a view of liberty that does not even acknowledge the collective?
You can reduce the frequency of conflict by assuming that people are good judges of what makes them happy, so a utilitarian outcome can be achieved by leaving them alone. This doesn't deal with issues like capital punishment; if there's a deterrent effect to be achieved by hanging someone who turns out to have been innocent, that might be the utilitarian outcome.
This might not be in conflict with the Liberty principle. If the deterrence saves the lives of third parties, haven't they been prevented from coming to harm? Mill believed that in cases of the most exceptional gravity, when evidence was conclusive, there should be a death penalty.
But did Mill progress from one idea to the other? Probably not. He was raised as a utilitarian. That's unusual, but so was his upbringing. He published On Liberty in 1859 and Utilitarianism in 1863. His speech in favour of capital punishment was delivered to the House of Commons in 1868. Either he suffered from an outbreak of liberalism in the late 1850s but reverted to utilitarianism, or he held both ideas at the same time.
While an attempt can be made (is made, above) to reconcile the principle from On Liberty with capital punishment, it's also possible to argue in the opposite direction, that a general good is not one of the two justifications for restricting the liberty of a person. The stronger argument for capital punishment comes from Utilitarianism. In a manner of speaking, for Mill at least, in this case utilitarianism trumps liberty. Is this a general rule?
Thought experiments might seem to suggest so. If a lifeboat can only hold seven, and there are eight people hanging on to it, and so it is sinking, should one person, however selected, be jettisoned so the others can live? Utilitarianism says they should and points out that the jettisoned person will drown either way, so it does them no (extra) harm.
If a city can be saved by handing over a hostage? Same argument.
But what if a terrorist can reveal the location of a ticking nuke in a major city, but only if tortured? This time it isn't so clear. That might be because it's a case we have had to consider recently, with the waterboarding scandal. And it seems that when actually faced with such an issue, the prevailing consensus has been the Liberty argument. It's widely agreed, though there are dissenters, that torture is never acceptable.
And would we really prise someone's fingers from the lifeboat and leave them to drown? Or give up a hostage to certain death? I have a feeling we wouldn't. We'd take it in turns to drag behind the boat on the end of a rope; we'd stall, the negotiator would offer himself as a hostage. Someone would make a noble gesture. We'd fight, perhaps, even against heavy odds. We'd take the liberty argument.
So is that a rule? Does liberty trump utilitarianism? Not always. We have abolished capital punishment, but the entire penal system is an exercise in utilitarianism. People were waterboarded, but this, it is widely agreed, was a moral wrong. Prisons, on the other hand, are generally accepted as necessary, even if they are necessary evils.
And perhaps there are some deeper, basic rules we know we should never break - not killing, not stealing - and these are inviolate. Perhaps throwing someone over the side would break one of these rules and it is this that prevents us from doing it, and not Mill's principle of liberty.
I can't see any general rules, or laws, that derive from these arguments, to be applied when individual rights conflict with the interests of groups of people. I think there might be things we regard as absolute wrongs and that these provide a baseline. Beyond that, when utilitarianism and liberty conflict, it has to be considered on a case by case basis - though we have some measures to lay the problem against. How does it affect liberty? How is the general well-being affected? Those are good measurements to take.
Norman Geras disagreed with Oliver Kamm about the banning of the burka, and in the course of doing so wrote the following:
[Kamm] needs to show, adducing evidence which is compelling, that women who wear the burka do so under duress, or at least that the great majority of them do. Even then, he has further to meet the point that the most natural response to the problem by way of policy would be to place a legal prohibition on the duress - on the coercion of women to wear what they would rather not. After all, if there are some or many women whose own choice it is to wear the burka, a legal ban on their doing so does not uphold their equal citizenshipThis is a clear case of conflict between the rights of individuals to wear a burka, and the rights of (a group of) other women not to be coerced and forced into a second-class status, or worse. But I don't think Norm was right to say there should be a majority of coerced burka wearers. At least, not correct when Mill's measures are used. This is a question not of the greatest number of people, but of the greatest harm.
Is a greater harm done by coercing a woman into an inferior role than by banning a mode of dress? Is it really one for one, onto the scales, or does a form of slavery, at the worst, matter more than the prohibition of an extreme form of costume? I think it must. That's not to say the harm done to the individual who wants to wear a burka is insignificant. It isn't, but it is less than that done to the coerced woman.
How widespread is this sort of coercion in Europe? I have no idea. Not a clue. I don't think anyone does. How would you even gather the information on which to base an estimate? Let's just say some are. In other places, parts of Pakistan and Afghanistan, for example, we know it's a characteristic of the society, allied to other things like the throwing of acid into the faces of girls who go to school.
If this harm elsewhere is linked to the burka wearing on our streets, then the weight of harm from the latter becomes far greater. Can that link be made? I think it can in at least this way: it can only impede attempts at reform in those places if the cultural practices that need to be reformed are spreading into Europe. The forced subjugation of women should be an ebb tide, not a rising one.
In what way is it more acceptable to have women prevented by law from working if they choose to, from wearing the clothes they want, from going out unaccompanied by a man, to be refused an education than to have the sort of race apartheid that was so unacceptable internationally in the past?
In the list immediately above is "wearing the clothes they want". This cuts both ways. Individual rights are affected whether you ban the burka or not - those of the voluntary wearers if you ban it, of the coerced ones if you don't. But the wider group interest, the moral weight of the other things that accompany this coercion, the entire second-class status, on the one hand has no counterweight on the other.
What if apartheid South Africa not just still existed, but there were advocates of apartheid in European countries loudly proclaiming that apartheid was the way forward, the future of man? What if many of them came from South Africa and had brought black South Africans with them, and maintained them in a second-class status, obliging them to wear striped trousers with frayed bottoms, held up with rope, and to go barefoot? What if some of the black Africans also thought apartheid was the way forward, and chose to dress like that?
Where's the cultural opposition to sexual apartheid, the way there was with South African apartheid? Of course it comes mainly from the left, this sort of cultural opposition, and the left is crippled by splits over just this sort of issue.
There's an argument that, working from practical considerations as well as the principle that everyone should be treated the same, wouldn't let anyone in a burka anywhere someone in a ski mask would be challenged or refused entry, like a bank, or a jeweler's shop, or passport control. Or a school or a hospital. This is a secular argument, it refuses to make exceptions on religious grounds. It's also rejects cultural relativism, refusing to make exceptions on cultural grounds. I think it's right.
So some restrictions on the places where a burka can be worn is reasonable. How about a ban? There's a tactical argument. Maybe banning burkas or stripey trousers with frayed ends isn't the right way to bring the problem to an end as fast as possible. I don't think arresting women for wearing burkas would help. But a formal ban on them being worn to schools (I'm using the word burka to include any religious dress that covers the face)? Yes, that's reasonable and flows from the ski mask test - ski masks would also be rejected by schools.
I'd summarise the arguments as follows:
- The burka can't be banned because we can't have the police arresting someone for their clothing, except where there's a clear danger of a breach of the peace (a Klansman in Harlem, perhaps). That's for practical reasons, but also on utilitarian grounds: greater general happiness would probably exist in a society in which the police aren't dragging screaming women into vans, than in one in which they are.
- Practical reasons aside, the burka should be banned. The rights to wear and not to have to wear particular clothing balance out. But the burka is a part of a system of oppression that has no counterweight in the equation. The rights of the voluntary burka wearer are out-weighed; the burka should be banned.
- The practical difficulties mean the burka should not be banned.
- We shouldn't make special exceptions for the burka, so it should be treated like any other mask. That is, we should all be equal under the law. Equality of treatment is implicit in Mill's idea of personal liberty. Making exceptions generates widespread disaffection and makes only a few happier, so it also fails on utilitarian grounds.
- The case against sexual apartheid is overwhelming; the practical struggle against it is not helped by European countries adjusting to accommodate it.