Law and Society
Week 7 Lecture 8
John Stuart Mill, 1806 1873
• English philosopher and economist; classical liberal theorist
• Liberalism = an ideology and a political tradition which holds that liberty is the primary political value
• Liberalism has its roots in the Western Age of Enlightenment as represented in the writings of
philosophers like Thomas Hobbes, John Stuart Mills, John Locke, Kant, and so forth.
• Focus on appropriate role of law and government in lives of citizens.
• Support a free market and a small role for the state
▯With competition and innovation, individuals will create superior products and compete with one
another for the good.
• The liberal metaphor is that the world consists of a multitude of independent individuals who have
somehow, at some time, entered into an accord (social contract) to establish common ties for the
▯What is the best thing not for just themselves as individuals, but the best thing for the society.
▯Legal liberalism focuses on the good and what the law ought to do.
Key Tenants of Liberal Legalism:
• Rule of law: Governments should be bound by known principles of law without distinction in their
applications to particular individuals or groups
Legal reasoning should be sharply distinguished from moral and political deliberation and choice.
(I.E: Fair, impartial application of law and justice)
▯Rule of law also takes this sensibility into consideration because they want to see a separation between
morality and (11 mins)
• Formalism: Notion that legal rules form a consistent and complete whole from which the answer to any
legal question can be logically deduced simply by discovering the applicable rule and applying it to the
facts of the case.
Judicial reasoning can yield determinant legal results
(I.E: internally coherent/logical, can be understood and predicted, abides by its own universal system)
▯Certain predictability because of its consistency.
• Neutrality: Legal principles and law are not based on any particular group’s conceptions of “moral” or
(I.E: culturally neutral, universally recognized as true)
▯neutrality is an ideal that has not been achieved. Legal principles and laws itself, it aims to be
culturally neutral. The aim towards justice, freedom is recognized as universal ideals.
• Abstraction: The law should operate at a high level of abstraction that excludes consideration of the
(Fair because it is not attached to/ have allegiance to a particular culture, or set of norms; forms, not
▯Doesn’t get too caught up in the social context, because the social context changes and we don’t want
it to change with the social context.
▯Abstraction is where law has the appeal, it is not caught up in the details, it is also seen as fair because
it is not invested in details. Not attached to any particular situation for that reason, it is thought that it does not have any particular cultural allegiance.
▯The point of abstraction is that it is the form, the scheme of the content, content is the details of the
• Individual Rights:
▯Classical liberal theories focus on the appropriate role of law and government in the lives of citizens.
▯Focus on individual freedom as the desirable outcome of a system of law.
▯Freedom or liberty: value in society that we are all encouraging one another
(I.E: Facilitate the security and satisfaction of its citizens; minimal interference)
Mill’s notion of Freedom:
“ The only freedom which deserves the name, is that of pursuing our own good in our own way, so long
as we do not attempt to deprive others of theirs, or impede their efforts to obtain it”
▯Pursue it for yourself as long as it doesn’t impede on someone else’s path/journey.
Key Question: What kind of power can society legitimately exert over the individual?
What do Individuals owe society?
• Although Mill doesn’t subscribe to the notion of a social contract, he does acknowledge a mutual
• “Everyone who receives protection […] owes a return [&] each should be bound to observe a certain
line of conduct towards the rest.”
• “Conduct”: (not thought)
▯not injuring the (rightful) interests of one another
▯each individual bears his/her share of the labors and sacrifices for defending society or its members
from injury or molestation
(I.E: a kind of mutual social responsibility)
▯Mutual sense of responsibility, if we want society to run a certain way, we need to act a certain way.
This is actively supporting through conduct in order to have the society run a certain way.
Jurisdiction of Society:
• “As soon as any part of a person’s conduct affects prejudicially the interests of others, society has
jurisdiction over it, and the question whether the general welfare will or will not be promoted by
interfering with it [the conduct] becomes open to discussion [i.e: not automatically open to law ]”
• (I.E: citizens decide: as a group whether the values and interests of society ought to change. No
individual has the right to do/ impose this on others)
Mill’s Key Principle: Harm
• Interference with the liberty of an individual is only justified to prevent harm to others.
• Otherwise, the individual is “sovereign’, and should be allowed to manage her/his own affairs in any
way she/he likes – but “stand the consequences”
▯Each individual make their own decision on how to act, but presumably on how they decide to do so
will have to stand the consequences.
• This includes the right to be self destructive.
Mill’s Definition of Liberty:
• Liberty is defined as the appropriate area for individual human action to be unlimited by governmental
intervention. • To Mill, this is the area where an individual’s action has only a direct effect on him or herself. (not
• Mill acknowledges that such actions may indirectly affect others, but there is no legitimate state interest
in limiting this kind of action.
(I.E: Free insofar as it does not harm others)
• Conscience: Freedom of thought, opinion, and the ability to express or publish it.
• Tastes and pursuits: able to direct one’s own life as one suits, even if it is foolish or wrong.
• Freedom of association: able to gathe