Wendy Donner 1

Comments on David Brink, “Mill’s Ambivalence about Rights”

for

Rights, Equality, and Justice: A Conference Inspired by the Moral and Legal Theory of David Lyons Boston University School of Law, March 12-13, 2010-03-08

Wendy Donner Department of Philosophy Carleton University Ottawa, Canada

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David Brink’s paper offers a rich and reflective exploration of various

proposed interpretations of Mill’s theories of duty and rights. My aim in these

comments is modest. I present the theoretical framework of the Art of Life that

Mill sets out in Book VI of A System of Logic. This framework has been used in

recent Mill scholarship in order to understand the architecture of his moral

philosophy, and I attempt to show how this framework illuminates some of the

questions raised in Brink’s paper.

Virtue ethicist Sarah Broadie raises a concern that Mill’s utilitarianism

lacks appreciation for the concept of the highest good or summum bonum. This

may seem to be a misdirected complaint, since Mill begins Utilitarianism by

highlighting the importance of the concept of the summum bonum and so seems

to share her worry in lamenting “the little progress which has been made in the

decision of the controversy respecting the criterion of right and wrong. From the

dawn of philosophy, the question concerning the summum bonum, or, what is the

same thing, concerning the foundation of morality, has been accounted the main

problem in speculative thought”.1 Broadie explains that her criticism is founded

on Mill’s alleged treatment of the highest good as useful only for a limited

purpose: “the philosophical assumption [is] that being the highest good is the

1 Mill, CW 10:205.

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same as, or at the very least is essentially connected with, being the standard of

right and wrong” 2.

Broadie misinterprets Mill. The interpretation reveals a serious

misunderstanding of the structure and organization of his theory, in particular, the

structure of the moral arts and sciences set out in Book VI of A System of Logic.

Regrettably, familiarity with this structure is often lacking in current discussions of

his utilitarianism, although recent scholarship has returned to this theme. David

Lyons’ work offers one of the key points in this revival.

The framework Mill sets out in the Logic is the essential starting point for

understanding the place of morality and justice within his philosophy, and their

relation to the principle of utility, the first principle of Teleology. In the last chapter

of Book VI, Mill separates the category of morality from the broader domain of the

moral or practical arts of life. The principle of utility serves as the foundation for

all of the numerous practical arts of human nature and society. Mill uses the term

“moral arts and sciences” to refer to the whole range of the practical arts of life

and the term “morality” to refer to one specific category of this. He says that

“ethics, or morality, is properly a portion of the art corresponding to the sciences

of human nature and society”3. He explains that there is a “body of doctrine,

2 Sarah Broadie “On the Idea of the Summum Bonum” in Christopher Gill, ed., Virtue,

Norms, and Objectivity: Issues in Ancient and Modern Ethics, Oxford: Oxford University

Press, 2005, p.43

3 Mill, CW 8: 943.

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which is properly the Art of Life, in its three departments, Morality, Prudence or

Policy, and Aesthetics; the Right, the Expedient, and the Beautiful or Noble, in

human conduct and works”4. All remaining practical arts are subordinate. The

subordinate arts need the arbitration of the foundational principle of Teleology to

determine issues of precedence or weighing. Practical reasoning must have a

first principle of Teleology. “There must be some standard by which to determine

the goodness or badness, absolute and comparative, of ends, or objects of

desire.”5. He uses an argument against moral sense theories to tease out his

point that the principles of these theories, even if true, “would provide only for that

portion of the field of conduct which is properly called moral. For the remainder of

the practice of life some general principle, or standard, must still be sought; and if

that principle be rightly chosen, it will be found, I apprehend, to serve quite as

well for the ultimate principle of Morality, as for that of Prudence, Policy, or

Taste”6. Unsurprisingly, this standard is “conduciveness to the happiness of

mankind…the promotion of happiness is the ultimate principle of Teleology”7.

Morality, the subject of the essay Utilitarianism, occupies only a portion of

the Art of Life. It is but one of dozens in the whole realm of the moral arts. In

other chapters of Book VI of the Logic, Mill looks at some of these other moral

4 Mill, CW 8:949.

5 Mill, CW 8:951.

6 Ibid.

7 Ibid.

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arts and sciences, which include psychology, ethology (the science of the

formation of character), education, politics, political philosophy, government,

economics, sociology, political economy, history, etc. Mill means it when he says

that the promotion of happiness is the ultimate principle of Teleology. The

principle of utility is indeed the foundation of morality. However, the meaning of

this is brought into focus and put in perspective when we realize that it performs

that same function for each and every one of the numerous practical moral arts.

When Mill says that we ought to promote happiness, he is in many cases making

a claim about a general value ought, not a moral ought. The principle of utility is a

principle of the good. It courts confusion to view it as a principle of right, rather

than as the principle that provides the foundation of morality, and of all other

moral arts.

It is important, therefore, not to inflate the role of morality in the good life,

as Mill himself vehemently and repeatedly argues, having in his sight offenders

such as Comte and Jeremy Bentham. It is equally important not to deflate the

role of the other moral arts, in particular virtue, since Mill himself expects much of

human happiness and flourishing depends upon a proper balance among the

activities of these domains of the good life. Yet confusion about the roles and

importance Mill assigns to these distinct compartments of the Art of Life is

rampant, even though these categories permeate Mill’s writings on living well.

Seen in this way, utilitarianism is accurately depicted as a “theory of life on which

this theory of morality is grounded”8. This comment from the early pages of

8 Mill, CW 10: 210.

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Utilitarianism may seem mysterious, but loses its enigmatic quality in the light of

the framework of the Art of Life.

In the essay Utilitarianism, Mill delineates the sphere of Morality and sets

out his methods for marking out its legitimate territory and limiting its demands.

This allows some breathing room for the other domains of the good life to

flourish, while recognizing the need to prioritize the vital interests that morality

and rights legitimately and strongly protect. In Chapter V of this essay, Mill sets

out the structure of his moral philosophy, including the relationship between

justice and utility. First he carves out the place of the category of Morality within

the Art of Life by marking it off from “the remaining provinces of Expediency and

Worthiness”9. He says,

We do not call anything wrong, unless we mean to imply that a person ought to be punished in some way or other for doing it…This seems to be the real turning point of the distinction between morality and simple expediency. It is a part of the notion of Duty in every one of its forms, that a person may rightfully be compelled to fulfill it…There are other things…which we wish that people should do, which we like or admire them for doing, perhaps dislike or despise them for not doing, but yet admit that they are not bound to do it; it is not a case of moral obligation…we say that it would be right to do so and so, or merely that it would be desirable or laudable, according as we would wish to see the person whom it concerns, compelled, or only persuaded and exhorted, to act In that manner10

The agenda lying behind this quote is a full one. The agenda includes

differentiating the domain of Morality from the other spheres of the Art of Life. But

an equally important part of the agenda is to limit clearly the sphere of morality so

9 Mill, CW 10: 247.

10 Mill, CW 10:246.

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that it does not undermine human happiness by overstepping its legitimate

boundaries. That way lies despotism and a clear conflict with Mill’s liberalism.

One primary offender in this regard is Auguste Comte, who, in Mill’s eyes,

is overly zealous in advocating hefty powers for morality. In “Auguste Comte and

Positivism” Mill launches a withering attack on Comte for being a “morality-

intoxicated man” who wants to expand morality’s authority so far as to transform

all practical concerns into moral concerns11. Comte adopts the misguided

Calvinist perspective of thinking that

[W]hatever is not a duty is a sin. It does not perceive that between the region of duty and that of sin, there is an intermediate space, the region of positive worthiness. It is not good that persons should be bound, by other people’s opinion, to do everything that they would deserve praise for doing. There is a standard of altruism to which all should be required to come up, and a degree beyond it which is not obligatory, but meritorious. It is incumbent on every one to restrain the pursuit of his personal objects within the limits consistent with the essential interests of others. What those limits are, it is the province of ethical science to determine; and to keep all individuals and aggregations of individuals within them, is the proper office of punishment and of moral blame. If in addition to fulfilling this obligation, persons make the good of others a direct object of disinterested exertions, postponing or sacrificing to it even innocent personal indulgences, they deserve gratitude and honour, and are fit objects of moral praise. So long as they are in no way compelled to this conduct by any external pressure, there cannot be too much of it; but a necessary condition is its spontaneity…Such spontaneity by no means excludes sympathetic encouragement…The object should be to stimulate services to humanity by their natural rewards; not to render the pursuit of our own good in any other manner impossible, by visiting it with the reproaches of other and of our own conscience. The proper office of those sanctions is to enforce upon every one, the conduct necessary to give all other persons their fair chance: conduct which chiefly consists in not doing them harm, and not impeding them in anything which without harming others does good to themselves.

11 Mill, CW 10:336.

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To this must of course be added, that when we either expressly or tacitly undertake to do more, we are bound to keep our promise. And inasmuch as every one, who avails himself of the advantages of society, leads others to expect from him all such positive good offices and disinterested services as the moral improvement attained by mankind has rendered customary, he deserves moral blame if, without just cause, he disappoints that expectation. Through this principle the domain of moral duty, in an improving society, is always widening. When what once was uncommon virtue becomes common virtue, it comes to be numbered among obligations, while a degree exceeding what has grown common, remains simply meritorious12.

He continues,

Demanding no more than this, society, in any tolerable circumstances, obtains much more; for the natural activity of human nature, shut out from all noxious directions, will expand itself in useful ones…But above this standard there is an unlimited range of moral worth, up to the most exalted heroism, which should be fostered by every positive encouragement, though not converted into an obligation…. Nor can any pains taken be too great, to form the habit, and develop the desire, of being useful to others and to the world, by the practice, independently of reward and of every personal consideration, of positive virtue beyond the bounds of prescribed duty13.

Mill argues that Comte has a companion in his project of enlarging the

domain of duty beyond its reasonable boundary. Comte’s fellow offender is

Jeremy Bentham. In “Bentham”, Mill argues that Bentham is one-sided and

makes too much of morality. Bentham’s

[O]ne-sidedness, belongs to him not as a utilitarian, but as a moralist by profession, and in common with almost all professed moralists, whether religious or philosophical: it is that of treating the moral view of actions and characters, which is unquestionably the first and most important mode of looking at them, as if it were the sole one: whereas it is only one of three, by all of which our

12 Mill, CW 10:337-338.

13 Mill, CW 10: 338.

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sentiments towards the human being may be, ought to be, and without entirely crushing our own nature cannot but be, materially influenced. Every human action has three aspects: its moral aspect, or that of its right and wrong; its aesthetic aspect, or that of its beauty; its sympathetic aspect, or that of its loveableness. The first addresses itself to our reason and conscience; the second to our imagination; the third to our human fellow-feeling. According to the first, we approve or disapprove; according to the second, we admire or despise; according to the third, we love, pity, or dislike. The morality of an action depends on its foreseeable consequences; its beauty, and its loveableness, or the reverse, depend on the qualities which it is evidence of….It is not possible for any sophistry to confound these three modes of viewing an action; but it is very possible to adhere to one of them exclusively, and lose sight of the rest. Sentimentality consists in setting the last two of the three above the first; the error of moralists in general, and of Bentham, is to sink the two latter entirely. This is pre-eminently the case with Bentham: he both wrote and felt as if the moral standard ought not only to be paramount (which it ought), but to be alone; as if it ought to be the sole master of all our actions, and even of all our sentiments14.

Mill’s definition of moral duty in Utilitarianism is set out in terms of moral

rules whose violation incurs coercion and sanctions. If conduct fails to maximize

the good it does not follow that it is morally wrong. Many actions in numerous

arenas of life do not maximize happiness but under Mill’s schema they are not

morally wrong. The terms governing duty do not apply to them; they are outside

its jurisdiction. Morality is a deliberately restricted domain. Morally wrong acts, in

Mill’s system, are those that are liable to punishment and coercion. Mill’s theory

conceptually links punishment, coercive sanctions, and moral duty. Failure to

appreciate the significance of the structure of the Art of Life leads Comte and

Bentham to mistakenly grant to morality too much authority over too many areas

of practical life. Rejecting this intoxication with morality, Mill works hard to

14 Mill, CW 10:112-113.

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restrain morality’s sphere of authority. In this way, by “demanding no more than

this, society… obtains much more”. The domain of virtue, nobility, beauty or

positive worthiness 15 correspondingly is given room and jurisdiction over areas

of the art of life that Mill does not think ought to be subject to coercion and

sanction. Mill propounds a doctrine of Virtue as complementary to his theory of

Morality. In “Thornton on Labour and its Claims”, Mill’s argument is clear and

explicit. He says

Utilitarian morality fully recognises the distinction between the province of positive duty and that of virtue, but maintains that the standard and rule of both is the general interest. From the utilitarian point of view, the distinction between them is the following:---There are many acts, and a still greater number of forbearances, the perpetual practice of which by all is so necessary to the general well-being, that people must be held to it compulsorily, either by law, or by social pressure. These acts and forbearances constitute duty. Outside these bounds there is the innumerable variety of modes in which the acts of human beings are either a cause, or a hindrance, of good to their fellow-creatures, but in regard to which it is, on the whole, for the general interest that they should be left free; being merely encouraged, by praise and honour, to the performance of such beneficial actions…This larger sphere is that of Merit or Virtue16. David Lyons’ should be honoured for his path-breaking insight that Mill’s

moral philosophy has a structure which is designed to promote the end of human

happiness. The principle of utility is a principle of the good or value. Lyons had

this insight, but did not foresee all of its radical implications. His scholarship

opened the door to the recent wave of work on Mill utilizing Mill’s framework of

the Art Of Life to uncover the contours of his distinctive form of utilitarianism as a

15 Mill’s choice of words varies in different writings. However, the underlying theme of

this category is consistently concerned with merit beyond or outside of prescribed duty.

16 Mill, CW 5:650-651.

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philosophy of the good life or of living well. Mill’s utilitarianism contains a theory

of morality, but his utilitarianism is most accurately described as a philosophy of

the good life.

Lyons sees the error in claiming that the principle of utility in itself sets out

moral requirements. “Mill’s principle of utility says nothing about right or wrong. It

speaks of ends, and is not seen by Mill as requiring that acts maximize utility”17.

Mill’s theory advocates limited moral obligations along with general approval of

utility-promoting actions. Mill’s model is grounded in coercive social rules and

sanctions--- legal sanctions, social disapproval and internal pangs of conscience.

However, Lyons’s analysis of Mill’s theory leaves something out. He says

that justice is a sector of morality and morality is a sector of expediency. The

omission is apparent from his claim that “Mill presents morality as the realm of

right and wrong, duty and obligation. He thus ignores such things as

supererogation, and his account is incomplete”18. But Lyons overlooks Mill’s

claim that he is marking off Morality from “the remaining provinces of Expediency

and Worthiness”19. Mill does not ignore supererogation. Rather, he locates it in

the separate companion sphere of Worthiness or Virtue in the Art of Life.

And so, Lyons’s further comments indicate that he had not yet, at that

point in Mill scholarship, foreseen the whole picture and potential of the Art of

17 David Lyons, Rights, Welfare, and Mill's Moral Theory, Oxford, Clarendon Press,

1994, p. 60.

18 Lyons, 1994, p.45.

19 Mill, CW:10:247.

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Life. He does not acknowledge that the domain outside of morality is not best

portrayed as the realm of “expediency”, but is best portrayed as the domain of

the remaining Arts of Life, and also the remaining and numerous other moral

arts. His comments on supererogation reveal this.

I argue that grasping the structure of Mill’s theory is aided if we use Mill’s

own language of virtue and nobility and worthiness rather than the alternative

language of supererogation. This is for at least two reasons. The first is that

employing the language of virtue and nobility opens up a direct link to the entire

tradition of virtue ethics which permeates his philosophy; it allows clear vision of

his indebtedness and commitment to this tradition, which is undergoing a strong

revival in recent years, and which removes some puzzles and illuminates some

aspects of Mill’s thought. Secondly, the language of the virtues brings with it the

idea that these are excellences and capacities that require training and

education, and this also opens up a direct link to Mill’s extensive writing on the

need for education to allow the development and exercise of the human virtues

and excellences that facilitate the good life of utilitarianism. Thus using this

language and these concepts facilitates understanding of some unifying themes

of Mill’s thought, some of which may be lost or is not captured by the alternative

language.

Lyons’s arguments, however, do point out that there are problems with

interpreting Mill as an act-utilitarian. Lyons points out the characterization of act-

utilitarianism that claims that “morality basically requires each of us always to act

so as to promote happiness or welfare as much as possible” (Lyons 13). This

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characterization does not square with a limited domain of morality. It makes

sense only if the domain of morality extends to cover all of the moral arts—

something that Mill rules out. He further notes that “many have assumed that

utilitarianism requires one always to `maximize utility’, regarding any other way of

acting as wrong. This `act-utilitarian’ doctrine has been criticized for imagining

duties where none exist”20(47). “According to my reconstruction, Mill holds the

wrongness of an act to be a function of not only its own utility but also the utility

of regulating it by means of generally internalized, shared social values” (61).

This links in directly with Mill’s liberal philosophy of education in the human

virtues and excellences21.

Lyons claims that,

To call an act wrong is to imply that guilt feelings, and perhaps other

sanctions, would be warranted against it. But sanctions assume coercive

rules. To show an act wrong, therefore, is to show that a coercive rule

against it would be justified. The justification of a coercive social rule

establishes a moral obligation, breach of which is wrong22.

20 “On the act-utilitarian interpretation, Mill is committed to holding that one is always morally bound to produce as much happiness…as possible---the most extreme teleological position. On the reading of Mill that I am proposing here, he is committed only to ranking acts according to their utilities, and to preferring more beneficent to less beneficent acts. But that does not commit him to regarding a failure to maximize utility as morally wrong” (50). “We can best respect Mill’s words by allowing him, quite reasonably, to value acts by reference to ends without forcing him to say, implausibly, that acts must always produce as much value or happiness as possible, lest they be wrong. This is precisely what Mill seems to deny” (50). 21 “Unlike recent utilitarian theories, Mill is not preoccupied with either acts or rules. Mill is committed fundamentally to the end of happiness, and thereby to whatever means best serve that end” (63). 22 Lyons 1994, p. 55.

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According to the usual interpretation of act-utilitarianism, then, the framework of

the Art of Life has dire consequences for this reading of Mill. Recent scholarship

(for example by John Skorupski, Alan Fuchs, Ben Eggleson and Dale Miller)

invoking this framework recognizes this and attempts to refocus the debate23.

Mill resists, not only the “despotism of custom”, but despotism as the

enemy of freedom, that which seeks to apply coercion and sanctions where

freedom ought to prevail. The misguided expansion of morality is corrosive to the

human spirit and well-being. Accordingly, Mill repudiates the practice of society

that “invests its own preferences with the character of moral laws…it is not

difficult to show…that to extend the bounds of what may be called moral police,

until it encroaches on the most unquestionably legitimate liberty of the individual,

is one of the most universal of human propensities” (CW 18: 284).

Act-utilitarianism as a reading of Mill is strikingly undermined, if not entirely

torpedoed, by the structure of the Art of Life. On the other hand, sanction

utilitarianism is fortified as a reading of Mill by its harmony with a theme running

systematically throughout his thought. This systematic theme consistently

delineates duty (with its use of sanctions and coercion) and separates it off from

both virtue and from liberty and prudence, thus corresponding nicely with the

remaining two categories of the Art of Life. It is plausibly seen, then as part of the

23 For example, Ben Eggleston and Dale Miller claim that the difficulties are powerful and that “complications arise as soon as we consider a couple of claims that are definitive of that view. First, act utilitarians believe that people are morally obligated, in every situation, to perform the act, of those open to them, that will produce the most happiness. But Mill denies this, for he sees the concept of moral obligation applying only in situations that meet a certain threshold of importance” (2APA). Fuchs says that “when our moral obligations are satisfied, or when (as will usually be the case) they do not even apply to the question in hand, the other practices of the art of life such as The Expedient and the Noble may hold sway and directly lead us to the summum bonum of the greatest happiness” (156).

Wendy Donner 15

architecture of Mill’s theory, and thus does much work beyond its function in

defining morality in Utilitarianism. Its consistent appearance across the broad

spectrum of Mill’s social and political writings is notable, and thus lends heftiness

to its prominent role in sanction utilitarianism. It is not simply a characterization

that Mill appeals to in this narrow context of defining duty in Utilitarianism. The

divide between means of coercion and sanctions, on the one hand, and

persuasion, encouragement, reasoning praise, and so on, on the other hand is

widely invoked and present in Mill’s arguments.

These delineations are very clear in On Liberty. This is not surprising,

since Mill’s liberalism fundamentally depends upon supporting liberty by

preventing encroachments of a coercive and despotic sort. That essay begins

with the statement of its principle 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” (CW 18: 223). Our division is found in the explanatory

follow up. “He cannot rightfully be compelled to do or forbear because it will be

better for him to do so, because it will make him happier, because, in the

opinions of others, to do so would be wise, or even right. These are good

reasons for remonstrating with him, or reasoning with him, or persuading him, or

entreating him, but not for compelling him, or visiting him with any evil in case he

do otherwise” (CW18: 223-24).

The division between duty and virtue is also showcased in the essay. The

“moral police” are tempted to use coercion to raise value production, illicitly. Thus

violations of moral duties must be separated out from

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[T]he self-regarding faults …which are not properly immoralities, and to

whatever pitch they may be carried, do not constitute wickedness. They

may be proofs of any amount of folly, or want of personal dignity and self-

respect; but they are only a subject of moral reprobation when they involve

a breach of duty to others... What are called duties to ourselves are not

socially obligatory, unless circumstances render them at the same time

duties to others. The term duty to oneself, when it means anything more

than prudence, means self-respect or self-development; and for none of

these is any one accountable to his fellow creatures (CW 18: 279).

Self-regarding virtues, which belong in the territory of worthiness and virtue, are

similarly marked off from duty in the Art of Life. He says,

I am the last person to undervalue the self-regarding virtues…education

works by conviction and persuasion as well as by compulsion, and it is by

the former only that, when the period of education is past, the self-

regarding virtues should be inculcated. Human beings owe to each other

help to distinguish the better from the worse, and encouragement to

choose the former and avoid the latter. They should be forever stimulating

each other to increased exercise of their higher faculties…But neither one

person, nor any number of persons, is warranted in saying to another

human creature of ripe years, that he shall not do with his life for his own

benefit what he chooses to do with it…In this department, therefore, of

human affairs, Individuality has its proper field of action…Considerations

to aid his judgment, exhortations to strengthen his will, may be offered to

Wendy Donner 17

him…but he himself is the final judge. All errors which he is likely to

commit against advice and warning, are far outweighed by the evil of

allowing others to constrain him to what they deem his good24.

He continues

The distinction between the loss of consideration which a person may

rightly incur by defect of prudence or of personal dignity, and the

reprobation which is due to him for an offence against the rights of others,

is not a merely nominal distinction. It makes a vast difference both in our

feelings and in our conduct towards him, whether he displeases us in

things in which we think we have a right to control him, or in things in

which we know that we have not (CW 18: 279).

R. J. Halliday also highlights this theme and set of distinctions, around the same

time that David Lyons’s work on the structure of Mill’s theory pointed in this

direction. Halliday says that “the word `moral’ cannot be applied to self-regarding

virtues. Quite clearly, Mill was limiting moral judgments to the other-regarding

category; those judgments entailed by the application of rules of opinion were

prudential and aesthetic judgments, but not judgments about the moral rightness

or wrongness of an action… Mill was distinguishing persuasion from sanction in

terms of a broad distinction between virtue and duty…to designate an action self-

regarding was to make moral judgments inapplicable” (120)25.

The framework of the Art of Life offers theoretical tools to advance our

understanding of the complexities of Mill’s thought. Here I hope to have 24 Ibid. 277.

25 See also Baum, especially pp. 156-57.

Wendy Donner 18

highlighted two of these. Using this framework, act-utilitarianism is weakened as

a reading of Mill. Sanction utilitarianism is strengthened, since it is shown to be in

harmony with a broad and fundamental theme within Mill’s thought.

Wendy Donner 19

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_____ed. The Blackwell Guide to Mill’s Utilitarianism, Oxford: Blackwell

Publishing, 2005.

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