4.4 FACILITACIÓN DE LA LIBRE CIRCULACIÓN DE BIENES, SERVICIOS Y PERSONAS.

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Undoubtedly the manner of asserting an opinion, even though it be a true one, may be very objectionable, and may justly incur severe censure. But the principal offences of the kind are such as it is mostly impossible, unless by accidental self-betrayal, to bring home to conviction. The gravest of them is, to argue sophistically, to suppress facts or arguments, to misstate the elements of the case, or misrepresent the opposite opinion.

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valuable to themselves, and in so doing become more valuable to themselves. Mill also observed that originality is something everyone admires. It stems from the fact of being free in thought and action. Originality is what produces geniuses of the day. If geniuses are compressed in the common place of the society they become of little value to the society;

but if they are of strong character and resist compression, they break their fetters and become marks for the society . Originality brings to fullness the potentialities and capabilities of man.

More so, it is important to give room for uncustomary modes of life, so that those of them fit to be converted to customs may be clearly seen. Nevertheless, independence of action and disregard of custom should be avoided lest good mode of action and customs be struck out.

Individuality is opposed to the blind submission of oneself to the customs and traditions of one's society. Customs may have developed within too narrow a range of experience, and even within that range, what is embodied within customary practices may not be the best interpretation of that experience.

Again, the knowledge and wisdom contained in the traditions of one's society may be suited to the needs of ordinary men living in ordinary situations, but not all men are so placed. A particular person may be very different from others, and he may also find himself in highly untypical circumstances. For such a person customary styles of life may have little to offer.

Human beings are not machines to be built after a model. They are more like trees which grow and develop from inward forces just as not all plants can survive in the same physical atmosphere, so too not all human beings will grow up healthily in the same social atmosphere. Some modes of life will cultivate the potentialities of some individuals, but they will at the same time crush those of others. Different persons require different conditions for their development, and there is no one pattern of life that will suit everybody. The attempt to force, by customary and other pressures, essentially different people into a uniform mould will stunt and warp them, thus preventing them from realising their different potentialities.

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But Mill's central objection to blind conformity to custom is that if a man accepts custom simply because it is custom, then he does not make a choice (Isaiah Berlin stresses the importance Mill attaches to the freedom to choose). To that extent he is less of a human person, for he has failed to develop in himself "any of the distinctive endowments of a human being" ⁴⁷. These distinctive human faculties of "perception, judgment, discriminative feeling, mental activity, and even moral preference, are exercised only in making a choice" ⁴⁸.Those who are unable or who refuse to exercise their human capacity for choice, Mill compares with apes, with cattle, with sheep, and with steam-engines. They have lost or surrendered that which is distinctively human, that which marks them out from the rest of nature and from the artifacts of human creation which cannot have aims and purposes of their own but are designed by human beings to serve the purposes of human beings. Once one has succeeded in building a good machine for a particular purpose, one can multiply it many times, and each additional machine, so long as it is a faithful copy of the original, will be just as good as the original. But with human beings the matter is different. Even with human beings who are very similar in potentialities, and who are similarly placed, it is not the case that they would all have the same human worth if they were all forced to copy a good model of their kind. It is possible that a person "might be guided in some good path, and kept out of harm's way"

without his making choices of his own. "But what will be his comparative worth as a human being? It really is of importance, not only what men do, but also what manner of men they are that do it."⁴⁹ What is lost in the forced imitation by human beings of good models of conduct is the conscious choice between alternatives, and all that this involves. The act of choice brings into play various faculties: seeing, reasoning, judgement, firmness and self-control.

And these qualities he requires and exercises exactly in proportion as the part of his conduct which he determines according to his own judgment and feelings is a large one. Men who make choices develop what Mill calls a "character": their desires and feelings are the

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products of their own conscious choices and are not the passively generated products of external factors. Mill argues at length for the importance of ‗individuality‘ which he holds, comes from, or indeed is identical with, continued effort at self-development. However, he thinks that for individualism to survive, people must be made to feel its value to see that it is good there should be differences.The struggle that often springs up between the society and the individual caused Mill to offer this kind of insight into modern democracy:

The ‗people‘ who exercise the power , are not always the same people with those over whom it is exercised; and the ‗self-government‘ spoken of, is not the government of each by himself, but of each by all the rest. The will of the people, moreover, practically means, the will of the most numerous, or the most active part of the people; the majority , or those who succeed in making themselves accepted as the majority: the people, consequently, ‗may‘ desire to oppress a part of their number; and precautions are as much needed against this, as against any other abuse of power.⁵⁰

Worst still, in Mill‘s view, the tyranny of the majority is always a threat to the individual freedom, with government control on one side, and all sorts of social and psychological pressures on the other. To protect the liberty of the indivdual, Mill sounds another warning:

―There is a limit to the legitimate intereference of collective opinion with individual independence: and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs, as protection against politcal despotism.‖⁵¹

This crisis is further confused by uncertainty as to where this limit of intereference should be.

One of the crucial needs of the day is to establish a recognised principle to govern the relatioship between individual liberty and authority. For the struggle between the two is the most conspicuious problem in the history of man as a political animal; that is to say ,the struggle between the rulers and the ruled, the state and the individual. Little wonder, therefore, that Mill, in order to safeguard liberty of the individual holds that the purpose for

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which power can rightfully be exercised over any member of a given community against his will, is to prevent harm against others.His own good, either physical or moral is not a sufficient warrant.In the above, Mill is stressing the importance of the individual in contributing to the common good, for the good of the individual should not be allowed to jeopardice the public good . Yet, Mill holds that since people differ by nature, they should be allowed to develop differently. This kind of liberty, according to him, engenders personal happiness and social progress . As a few may come up with improvements benefical to others thus, opening gate for future developments. But where this liberty is not allowed, the contrary result is always the case. It is only by the liberty, choice and its exercise that people develop their potentials and character. For the test of any civilisation is the quality of its people, an idea that finds noteable expresssion in Mill:

It really is of importance not only what men do, but also what manner of men they are that do it. Among the works of man , which human life is rightly employed in perfecting and beautifying, the first in importance is surely man himself.

Human nature is not a machine to be built after a model, and set to do exactly the work prescribed for it, but a tree, which requires to grow and develop itself on all sides, according to the tendencies of the forces which make of a living thing. ⁵²

From this view, Mill asserts that the individual should not be forced to change his ways and should not be asked to, unless of course, his actions endanger the common good. For the individual is the monarch of his own realm: ―over himself, over his own body and mind, the individual is sovereign‖.⁵³ Clearly the principle so formulated is not in description of the past events, but a formula to guide civilised nations in the present and the future. Thus the claims of liberty have now become the vital questions of the present and the future.

109 3.4 LIMITS OF AUTHORITY OF SOCIETY

Mill attempts to delineate when the authority of society can rightly limit individuality and the

"sovereignty of the individual over himself." Mill's answer is that society and the individual should each receive control over that part of human life that it is particularly interested in. In proposing these three aspects of civil liberty, Mill intends to put a check on the powers exercised by the society on the individual person. He asks: ―How much of human life should be assigned to individuality, and how much to society? To individuality should belong the part of life in which it is chiefly the individual that is interested, to society, the part which chiefly interests the society”⁵⁴.

What Mill meant here is that so long as a person‘s action affects the interests of others, society has jurisdiction over it; but in matters that pattern to the person himself, there should be perfect legal and social liberty. He cited an example that no one should be punished for drunkenness; but a soldier should be punished for being drunk on duty. This doctrine does not imply a selfish indifference of people to others, but there is the need for people to encourage one another to choose good and avoid evil. They should also stimulate one another to increase exercise of their higher faculties . He maintains that ―consideration to aid one‘s judgment, exhortation to strengthen his will may be offered to him but he is the final judge‖.⁵⁵ Even if a man errs, it is better than others constraining him to do as they please.

People have right to caution others of their mis-behaviour without oppressing their individuality by being unruly. However, if a man‘s conduct lacks the qualities of human nature, it may affect other people‘s relationship with him. They may decide to avoid him, they may caution others against him if they think that his actions would have precarious effects on them. Guidance may be given him; but he should be allowed to make decisions for himself.

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In Mill‘s own view, individuals should be allowed to pursue a way of life that pleases them.

For this reason, parents should be allowed to obtain education for their children where and how they like. Although trade is a social act, people are free to choose the occupation that suits them; however, some prohibitions are made on some goods that are harmful to the society. People are also free to invent new ideas and new modes of thought in order to improve their life and that of the society at large. The same also applies to the realm of morality and religion, each individual is entitled to his own conscience.

Mill also emphasizes that in matters that affect the interests of others, social sanction should be weighed against the offence; and if the sanction outweighs the act, punishment should be suspended. He further says that if the harm is such that the society could bear, they should do so for the sake of human freedom. However, if there is a deliberate harm done to the society, punishment should be administered accordingly. While rejecting the idea of a social contract, Mill writes that since people receive the protection of society, they owe certain conduct in return. Individuals must not injure those interests of other people that should be considered rights. Individuals must fairly share the burden of defending society and its members from injury. Finally, individuals may be censured by opinion, though not by law, for harming others while not violating their rights. Thus, society has jurisdiction over any aspect of human behaviour that "affects prejudicially the interests of others." However, society does not have an interest in those aspects of life that affect no one but the person acting, or only affects people by their consent. Mill writes that such behaviour should be both legally permitted and socially accepted. People should encourage others to make full use of their faculties. They should not, however, try to keep a person from doing with his life what he wishes. Mill justifies this position by observing that anybody else's interests in or knowledge about a particular person's wellbeing is "trifling" compared to the individual's own interest and knowledge. Mill says that he does not mean that people should not be

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allowed to point out what they see as faults in other people's behaviour. In addition, he is not proscribing avoiding a person or warning others about that person. These "penalties" are acceptable because they are natural reactions to some behavior - they are not intended to punish a person. However, People do not have the right to express moral reprobation, and they should not try to make the person uncomfortable. He should not be treated with anger or resentment, or seen as an enemy if he engages in unpopular activities that only affect himself.

Mill then addresses potential criticism of his argument. How "can any part of the conduct of a member of society be a matter of indifference to the other members?" No human is fully isolated, and actions can create bad examples, hurt those who depend on the person and diminish community resources. Furthermore, why can't society interfere on behalf of mature people incapable of "self- government?‖ Mill replies that he agrees that some behaviour may affect the "sympathies" and interests of others, and hurt the well-being of society at large.

When an action violates a person's obligations then it does not only affect himself, and he can properly face moral reprobation for breaking those obligations. Mill gives the example of a person who is unable to pay debts because of extravagant living. He says that such behaviour is subject to punishment because the person fails to fulfill a duty to his creditors. However, the person should not be punished for the extravagance itself -that is a personal decision that must be respected. In contrast, if an action only indirectly affects society without violating any fixed obligation, then "the inconvenience is one which society can afford to bear, for the sake of the greater good of human freedom." Society has a person's entire childhood to nurture values; if the person fails to accept those values, or remains immature, it is society's own fault. No further influence is necessary. Also, if an action is harmful then people will see its negative effects, and this should be enough of an example to them of why they should not act in such a way. Mill says the strongest argument against interference, though, is that when society does interfere, it will likely do so wrongly. He writes, "There is no parity between the

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feeling of a person for his own opinion, and the feeling of another who is offended at his holding it." Mill argues that there is a universal tendency of people to extend the bounds of

"moral police" unjustly. He writes about how a Muslim majority might insist that pork not be eaten in their country, or that married clergy be punished in Spain. He writes, "We must beware of admitting a principle of which we should resent as a gross injustice in the application to ourselves." If people want to be able to impose their morality, they must be willing to accept the imposition by others. Mill complains about unjust violations of freedom such as the banning of alcohol, the banning of recreation on the Sabbath, and the persecution of Mormons for polygamy. People can preach against such activities, and try to change people's minds, but they should not be coercive.