Liberty, Equality and Fraternity (review)

BOOK REVIEWS 229 Kant and the subsequent absolute transcendental philosophy, and the absorption of reality by reason, brought ~bout by Hegel and the subsequent absolute idealism. JACQUESWAARDENBURG University of Utrecht Liberty, Equality and Fraternity. By James Fitzjames Stephen. Ed. R. J. White. (New York: Cambridge Univ. Press, 1967. Pp. 291. $7.50) Mill's On Liberty has become the classic statement of minimum legal interference in the projects and pastimes of the individual. Nonetheless it suffers from a pair of disabling ambiguities. First, liberty is advanced as a positive goal at which society might aim, but Mill's claims for it are negative, in the form of restrictions on the exercise of power by governments or majorities. Second, in spite of its egalitarian tone, On Liberty is an aristocratic book. It is hard to tell whether Mill defends minority opinions and practices simply because they are private rights, or whether he is interested only in defending that precious minority, the political and cultural leaders of a nation. And throughout, Mill tends to dodge the difficult eases. No one has exposed these weaknesses in Mill's position more ably than James Stephen , who first published his reply to Mill in 1873. This new edition is thus very welcome, especially as the themes of On Liberty are once again current topics in Parliament, in the courts of England and the United States, in law institute proposals and in the debate between Professor Hart and Lord Devlin and their various seconds. Among all these deliberations and publications Stephen's book strikes me as by far the most forceful and wide ranging treatment of law-morals and rights questions. It is his book that deserves to be the classic. That it has been so completely forgotten (Devlin reports having difficulties finding a copy) is perhaps due to its occasional outbursts of Victorian reaction to sin. In one colorful passage for example (pp. 137-138) he refers to the state bandying compliments with pimps when it should instead "get its grip on the collar of such a fellow" and say to him: "'You dirty rascal, it may be a question whether you should be suffered to remain in your native filth untouched, or whether my opinion about you should be printed by the lash on your bare back'." Such passages are memorable, but by the same token make it easy to dismiss Stephen as a polemicist for Podsnapian virtue. Then too there is a good deal of reference to a currently unpopular form of Christianity in which hell looms large. Fire and brimstone no doubt strike the modern reader as uncouth and irrelevant; nonetheless our sophisticated sensitivities should not allow us to be distracted from the important uses that Stephen makes of his religion of fear in drawing attention to fundamental features of civil society and its management. The philosophically trained reader would do well to begin with the note on utilitarianism which Stephen appends to this work, so as to keep in mind the analytical power of the writer also capable of moral flamboyance. It should also be noted that Stephen's project is not a defense of Victorian virtue but in fact a utilitarian critique of democratic principles. Stephen is a disciple of Mill, a fact brought out by White in his introduction. In fact he does a better job than Mill of formulating the libertarian thesis in utilitarian terms: "No one is ever justified in trying to affect anyone's conduct by exciting his fears, except for the sake of selfprotection " (p. 57). Pain excites fears; punishment is a legally exercised form of pain. Therefore, on utilitarian grounds, criminal law is prima facie bad, since it increases the amount of pain in the world. To justify punishment, social expedience must clearly 230 HISTORY OF PHILOSOPHY outweigh the pain to the individual. This is an empirical question, and Stephen recognizes it as such. Mill, on the other hand, rather strangely attempts an a priori distinction, arguing that punishment applies only to other-regarding acts. Stephen has little difficulty disposing of this. For one thing, it is not clear what defense can be offered for the claim to immunity for self-regarding actions; for...