Why the name? Well criminal law afficionados will recognise the phrase 'oblique intent' as referring to a problem of mens rea:can a person who intends to do x (such as setting fire to a building to scare the occupants) also be said to have an intention to kill if one of the occupants dies? This is a problem that has consumed an inordinate amount of time in the appeal courts and in the legal journals, and can be taken to represent a certain kind of approach to legal theory. My approach is intended to be more oblique to this mainstream approach, and thus to raise different kinds of questions and issues. Hence the name.
Sunday, 15 June 2014
An often overlooked feature of John Stuart Mill’s famous statement of the ‘harm principle’ is that it refers to the ‘civilised community’: “the only purpose for which power can be rightfully exercised against any member of a civilised community, against his will, is to prevent harm to others.” So for Mill the operation of the harm principle is conditional, or at least dependent, on the existence of the civilized community.
But what did Mill understand by this term? A useful starting point for understanding this is Mill’s essay on civilization, published in the London and Westminster Review in 1836. Mill understood the term ‘civilization’ to have a broad and a narrow sense. The broad sense was the way in which we might speak of a society as more perfect, as “happier, nobler, wiser”, as in the civilization of ancient Greece or Rome. The narrow sense was comparative: the term could be used to distinguish a wealthy and populous nation from savages and barbarians, but in doing so could also recognize that the progression of civilization might be accompanied by new miseries or give rise to new kinds of vices.
Focusing on this latter sense Mill argued that the degree of civilization could be measured by the degree of co-operation in a society: “Wherever, therefore, we find human beings acting together for common purposes in large bodies, and enjoying the pleasures of social intercourse, we term them civilized”. Savage society was violent and power could be exercised in an arbitrary way. In a civilized society security, which he understood as the protection of individual interests, would depend on the collective arrangement of society, rather than on individual strength or courage. Indeed for Mill this was the measure of civilization, as he want on to argue that “There is not a more accurate test of the progress of civilization than the progress of the power of co-operation”. Co-operation in his view was something that was learned in the progress of civilization – the division of labour was, in his phrase, the “great school of co-operation”. Civilization brought about the diffusion of property and intelligence throughout society and taught self-control and compromise, the sacrifice of individual will to a superior purpose.
Why does this matter? Its importance, I think, lies in the sense in which Mill was establishing preconditions. The harm principle does not apply to all, but only to those individuals and those societies which qualify. It must be understood in this sense not as a simple statement about the limits of state power, but in terms of a more complex relation. The operation of the ‘harm principle’ was linked to the division of labour and the degree of social progress, both in the sense of whether or not it was appropriate to a particular society or group within that society, and in the sense that civilization could give rise to new vices or harms. And of course the important questions then becomes those of who is to judge whether you meet the entry criteria for the club of civilization and according to which criteria is this judgment made.
I have two further comments about this. First, it is clear that this judgment was made on the basis of cultural assumptions about the the superiority (and civilized character) of western societies. So for Mill this justified, in particular the British Empire in the Indian subcontinent and Africa as a civilizing project. Imperial rule could be despotic because the barbarians could not govern themselves
Second, once you are aware the way this distinction, you will be surprised at how often it is still used even in the present day as a means of justifying non-liberal measures. Rioting is uncivilized behaviour and the police are the the thin blue line which stands between us and the breakdown of civilization - so liberal principle s of law may be suspended. Once you look you will see many examples of this kind, which makes you think about the continuing importance of the idea of civilization.