What is the place of utilitarianism in the broader libertarian tradition?

David S. D’Amato is an attorney, a regular opinion contributor at The Hill, and an expert policy advisor to the Future of Freedom Foundation and the Heartland Institute. His writing has appeared in Forbes, Newsweek, The American Spectator, the Washington Examiner, Investor’s Business Daily, The Daily Caller, RealClearPolicy, Townhall, CounterPunch, and many others, as well as at nonpartisan, nonpartisan policy organizations such as the American Institute for Economic Research, the Centre for Policy Studies, the Institute for Economic Affairs, the Foundation for Economic Education, and the Institute for Ethics and Emerging Technologies, among others. He earned a JD from New England School of Law and an LLM in Global Law and Technology from Suffolk University Law School. He lives and writes in Chicago.

As its name implies, utilitarianism takes utility as its cynosure. So why did John Stuart Mill, one of utilitarianism’s principal exponents, say that it could equivalently be called “Happiness theory?” Utility, Mill says, must not be regarded in the colloquial sense of something “opposed to pleasure.” Quite to the contrary, Mill means to denominate utility just in terms of gains in pleasure and decreases in pain. Mill thus refused to accept the notion that there is a necessary contrariety in the relationship between “the useful” and “the agreeable or the ornamental.” Rather he made these practically inseparable and sought to develop an idea of pleasure that subsumed the higher pleasures.

Probably the most gifted and certainly the most outstanding of Jeremy Bentham’s philosophical disciples, Mill stands out as a key figure in nineteenth century liberalism. It is in Mill that we find the most fully developed and best articulated statement of utilitarianism, and it is Mill’s utilitarianism that has the broadest implications for contemporary libertarian thought. A certain ambivalence has always characterized the relationship between libertarianism as a distinct current and the utilitarianism of Bentham and Mill—and not without reason. For just as the utilitarian philosophy was capable of producing classics of liberal and libertarian thought such as Mill’s On Liberty, it has also lent itself to some rather unlibertarian results.

The British historian Maurice Cowling indeed went as far as arguing that Mill’s thought features “a carefully disguised intolerance,” quite unlike “the libertarianism for which Mill’s doctrine is sometimes mistaken.” Even if Cowling had an ideological ax to grind, Mill’s work nevertheless shows a decided tendency to apply the principle of liberty inconsistently and unevenly. Because utility—not liberty—was of paramount importance in Mill’s thought, the individual and her freedoms could fall by the wayside before putative utilitarian justifications for intervention and control. In all attempts at utilitarian calculus, including Mill’s, there is a certain conceit, a belief that we mere mortals have to ability to previse the potential quantities of pleasure and pain that will issue from a given course of action. Under the sway of this conceit, Mill mistakenly conflated the greatest happiness in abstraction with the same notion as it manifested in his own mind and judgment. This error lead to political forms that would sanction levels of coercive social engineering and constraint which could not be called libertarian. Eminent political theory scholar, the late George W. Carey, maintained that the John Stuart Mill revisionists, those seeking to emend the hitherto dominant narrative of Mill as champion of civil libertarianism and diversity, would certainly prevail ultimately. Much of this revisionism addresses Mill’s apparent acceptance of “the Religion of Humanity,” an idea inherited from the French positivist philosopher Auguste Comte, whose influence on Mill, many revisionists argue, has been insufficiently explored. Comte’s positivism builds a comprehensive and all‐​embracing vision of society grounded in strong empiricist claims; for Comte, given advancements in human knowledge through observation (and using inapt analogies to Newtonian physics) it was entirely possible to construct the next and indeed final development in human society. In spite of his many critiques of Comte’s ideas, Mill’s engagements with them left an indelible mark on his life and work.

Yet Mill’s Harm Principle functions as one of the simplest and truest statements of the most fundamental libertarian proposition. If one’s actions avoid causing harm to anyone else, then those actions are permissible and must not be the subject of “compulsion or control.” Thus, an individual’s “own good, either physical or moral, is not a sufficient warrant” to impose such coercion. Arguing that “leaving people to themselves is always better, cæteris paribus, than controlling them,” Mill’s political philosophy, whatever its flaws, is a centerpiece of the liberal tradition.

An early champion of equality between woman and men, Mill reasoned insistently that the “legal subordination” of the former to the latter was inherently wrong and based purely on untested conjecture on the nature and abilities of women. And notwithstanding his own pretensions to knowing what edicts and controls would produce the greatest happiness, Mill upheld freedom of speech and of opinion with the argument that none of us is “an infallible judge of opinions”—that, to discover the best results and solutions, it is necessary to allow free exchange and traffic in ideas. This is Mill at his most liberal, and therefore most libertarian. The willingness to challenge accepted wisdom, the distaste for appeals to tradition or custom, evokes the originator of Mill’s utilitarian philosophy, Jeremy Bentham, who secured a place for himself in the libertarian tradition alongside Mill..

Published in the same year in which the Declaration of Independence was adopted, Bentham’s A Fragment On Government is his attempt to expound the “fundamental axiom” that “it is the greatest happiness of the greatest number that is the measure of right and wrong.” Trained as a lawyer following his father, the young Bentham studied under the tutelage of the great jurist William Blackstone, a criticism of whom was Bentham’s initial motivation. That criticism took the form of Bentham’s Fragment, which law professor Richard Posner says “made two fundamental criticisms of [Blackstone’s] the Commentaries.” Most notably, Bentham criticized Blackstone as, in the words of F.C. Montague, “a dogmatist and sworn enemy of all reformation,” insufficiently attuned to the defects and shortcomings of the English law. For Bentham, “reformation in the moral” sphere was analogous to “discoveries in the natural world,” Blackstone’s Commentaries being not just an impediment to the former, but its “determined and persevering enemy.” Taking up David Hume’s critical appraisal of social contract theory, Bentham positions himself as a radical to Blackstone’s conservative, dismissing “the Original Contract” as one of many fictions to which, he argues, the Commentaries offer support.

Bentham argues that, possessed by the spirits of “ornament” and “authority,” Blackstone has submitted a work that appeals not to our reason, but rather attempts to subdue it with “theological flourish.” Such genuflection before the “footstool of Authority” subverts law’s proper basis and thus yields a paradigm in “which the utility of [a law] has no imaginable connection” with the circumstances under which it was passed. This, primarily, is the source of Bentham’s critical opprobrium. He would cast aside the trappings of tradition, reputation, and authority, which, he contends, are more likely to illude than to illuminate. Chiefly indebted to Hume in his concern with utility, Bentham argues that it is this concern—“the happiness of his people”—that ought to guide the sovereign, that submission to political authority is properly vindicated only on this basis, if at all.

The theory of the social contract, then, is incapable of providing an acceptable account of legitimate government power; for as Hume wrote in A Treatise of Human Nature, “were you to ask the far greatest part of the nation, whether they had ever consented to the authority of their rulers, … they wou’d be inclin’d to think very strangely of you.” It was thus clear enough “that the affair depended not on their consent,” that no one could rightly be obliged by a contract or promise of which she is unaware. Whether or not social contract theory was “overthrown” or “demolished” in the Treatise as completely as Bentham imagined, he was careful to admit that the interests of citizens would nevertheless hold the polity together in the absence of such a theory.

James Mill, student of Bentham and father of John Stuart Mill, is another important utilitarian liberal. In his Essay on Government, James Mill recommences the argument for government as simply a utilitarian mechanism meant to “increase to the utmost the pleasures, and diminish to the utmost the pains, which men derive from one another.” Mill scholars such as William Thomas have suggested that while Bentham’s philosophical legacy is more esteemed in the academy, Mill’s exoteric, accessible tracts were more influential on practical politics and legislative reforms such as the Reform Act of 1832. To achieve maximum happiness, Mill argues, government must be established for the primary purpose of preventing the stronger from living at the expense of the weaker, from instituting slavery as a way to obtain “the means of subsistence” without laboring. Already, then, Mill’s Essay shows itself as an important one for libertarians. Clearly, Mill argues, if the ultimate goal is to engineer a social and political system that will effectuate the most pleasure and least pain, then reducing the greatest number to slavery cannot be the solution. After considering and dismissing various possible modes of government—Democratical, Aristocratical, and Monarchical—Mill prescribes a representative government, carefully explaining the various devices for ensuring that the representatives share the interests of the whole people. For Mill, such a system could solve the paradox inherent in government, that is, that the few entrusted with the coercive power to protect us may use that power “to take the objects of desire from the members of the community.” Mill wanted to carefully limit government to prevent this kind of elite predation and avoid its disastrous economic consequences.

Like his friend David Ricardo, James Mill is among the pioneering fathers of classical economics, his many unique contributions to which are often overshadowed both by his general association with Benthamite utilitarianism and by the legacy of John Stuart Mill. In Commerce Defended, the elder Mill sets forth a paradigmatic apology for economic liberalism, offering one of the first elucidations of the economic principle that later came to be called “Say’s Law.” Also known as the Law of Markets, that principle holds that “production of commodities creates, and is the one and universal cause which creates a market for the commodities produced.” While Murray Rothbard asserts, in Volume II of An Austrian Perspective on the History of Economic Thought, that Mill “appropriated the law” from Jean‐​Baptiste Say, scholars such as William O. Thweatt point out that Mill’s “full and balanced” presentation of the Law of Markets in 1808 actually antedates Say’s work on the principle. Mill’s Commerce Defended, moreover, easily confuted the economic fallacies and errors of the protectionists and mercantilists of his day, arguments like those of William Spence that commerce itself is relatively unimportant in the creation of wealth and imports can never effect a gain for the importing country. Mill deftly exposed the problems with such arguments, championing free trade and spending years of his life popularizing the ideas of Smith and Ricardo.

Though the utilitarians leave a mixed and often contradictory legacy to libertarians, their contributions are nonetheless an important element of classical liberalism and classical economics. Understanding the utilitarians’ arguments on rights and on the relationship between government and pleasure/​pain outcomes offers today’s libertarian a valuable foundation for approaching a contemporary public policy world obsessed with studies, empirical data, and the testimony of experts. Whatever our thoughts about utilitarian arguments, they are far more common in today’s legislative debates (and political debates more generally) than, for instance, appeals to natural rights.