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significance of the fact that the individual is situated in a particular community,
see Michael Sandel, ed., Liberalism and Its Critics, 2nd edn (Cambridge,
Cambridge University Press, 1995).
For Gray s attack on what he takes to be Mill s view of individuality, see
John Gray, Liberalisms: Essays in Political Philosophy (London, Routledge,
1989), Chapter 10; and Gray, Mill s Conception of Happiness and the Theory
of Individuality , in J. Gray and G.W. Smith, eds, J.S. Mill: On Liberty in Focus
(London, Routledge, 1991), pp. 190 211. Gray s claim that any defence of
liberty from human fallibility is self-defeating may also be found therein.
For a liberal view that rational self-determination or autonomy is
compatible with the affirmation of reasonable moral rules and obligations, see
Gerald Dworkin, The Theory and Practice of Autonomy (Cambridge, Cambridge
University Press, 1988).
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GENERAL I SSUES
Hart s suggestion that Millian liberalism requires a separate principle
recognizing society s legitimate authority to employ coercion to prohibit public
offence, was offered in the context of his well-known debate with Lord Devlin
over the 1957 Wolfenden Report. The debate revolved around the issue of
whether homosexual behaviour between consenting adults in private should be
outlawed. More generally, Hart argued that society ought not to use the law to
enforce ideas of morality in private settings, whereas Devlin argued the reverse,
suggesting that society could properly prohibit any conduct which aroused the
intense disgust of the average man in the street. In 1967, the Report s
recommendation to drop legal restrictions on homosexual conduct in private
was implemented, in the Sexual Offences Act. Meanwhile, in the US, essentially
moribund state laws against sodomy and other sexual practices are still on the
books. In a 1986 decision (Bowers v. Hardwick), the US Supreme Court declined
to nullify the laws as unconstitutional, preferring to leave it up to the state
legislatures to repeal them. For further insights into the Hart-Devlin debate, see
H.L.A. Hart, Law, Liberty, and Morality (Oxford, Oxford University Press,
1963); Patrick Devlin, The Enforcement of Morals (Oxford, Oxford University
Press, 1965); C.L. Ten, Mill on Liberty (Oxford, Clarendon Press, 1980), pp.
86 108; Joel Feinberg, The Moral Limits to the Criminal Law, 4 vols (Oxford,
Oxford University Press, 1984 8), Vol. 4, esp. Chapter 30; and Michael Martin,
The Legal Philosophy of H.L.A. Hart (Philadelphia, Temple University Press,
1987), pp. 239 71.
For Feinberg s elaboration of Hart s suggestion that a liberal principle of
public offence is needed, see Feinberg, The Moral Limits to the Criminal Law,
Vol. 2. Despite its interest, Feinberg s approach is a far cry from the liberalism
of Mill s text-book , a point taken up more generally in Chapter 9 of this
GuideBook. Indeed, Mill s original argument is in danger of being obliterated
by Feinberg s type of liberal revisionism. For example, some have claimed
recently, apparently under Feinberg s influence, that a Millian liberal can
consistently support an outright ban on all violent pornography for one reason
or another. No careful reader of the Liberty can agree with such a remarkable
claim, unless the pornographic materials themselves involve children, retarded
people, unwilling adults or animals. For the claims in question and discussion
186
LI BERTY, I NDI VI DUALI TY AND CUSTOM
surrounding them, see David Dyzenhaus, John Stuart Mill and the Harm of
Pornography , Ethics 102 (1992): 534 51; Robert Skipper, Mill and
Pornography , Ethics 103 (1993): 726 30; Richard Vernon, John Stuart Mill
and Pornography: Beyond the Harm Principle , Ethics 106 (1996): 621 32;
and Danny Scoccia, Can Liberals Support a Ban on Violent Pornography? ,
Ethics 106 (1996): 776 99. This debate is discussed further in J. Riley, Mill s
Radical Liberalism: An Essay in Retrieval (London, Routledge, forthcoming),
Chapter 9.
187
Chapt er 9
The doctrine of
Liberty in practice
How can anyone seriously think that Mill s
doctrine is workable?
A familiar complaint, pressed initially by religious and moral
idealists such as Green and Bosanquet, and resonant in the
literature ever since, is that Mill s liberty principle provides
little, if any, practical guidance. Various related reasons have
been offered in support of the charge. The principle is misleading
in practice, some have said, because it relies on an arbitrary
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