It is hardly to be expected that this question will be asked in respect to the change proposed in the condition of women in marriage. The sufferings, immoralities, evils of all sorts, produced in innumerable cases by the subjection of individual women to individual men, are far too terrible to be overlooked. Unthinking or uncandid persons, counting those cases alone which are extreme, or which attain publicity, may say that the evils are exceptional; but no one can be blind to their existence, nor, in many cases, to their intensity. And it is perfectly obvious that the abuse of the power cannot be very much checked while the power remains. It is a power given, or offered, not to good men, or to decently respectable men, but to all men; the most brutal, and the most criminal. There is no check but that of opinion, and such men are in general within the reach of no opinion but that of men like themselves. If such men did not brutally tyrannise over the one human being whom the law compels to bear everything from them, society must already have reached a paradisiacal state. There could be no need any longer of laws to curb men's vicious propensities. Astraea must not only have returned to earth, but the heart of the worst man must have become her temple. The law of servitude in marriage is a monstrous contradiction to all the principles of the modern world, and to all the experience through which those principles have been slowly and painfully worked out. It is the sole case, now that negro slavery has been abolished, in which a human being in the plenitude of every faculty is delivered up to the tender mercies of another human being, in the hope forsooth that this other will use the power solely for the good of the person subjected to it. Marriage is the only actual bondage known to our law. There remain no legal slaves, except the mistress of every house.--The Subjection of Women, Chapter 4.
The immediate context of these remarks is Mill's (and perhaps Taylor's) attack on the marriage laws. In the quoted passage Mill presuppose here background knowledge on the way the nineteenth century common law makes wives and their properties, the properties of their husbands along many different dimensions (see chapter 2). Not unlike other nineteenth century feminists, Mill's compares these marriage laws to the servitude of slaves. As quotes passage suggests ("modern world"), the argument presupposes (but does not excessively rely upon) Mill's commitment to civilizational, stadial progress, which is, in part, a painstakingly slow -- what, while commenting on his Hebraism in Representative Government, I once (recall) called dialectical -- process of moral discovery ("those principles slowly and painfully worked out.") This stadial theory is, alas, racialized (or has essentializing tendencies about cultures), and it infects quite a bit of Mill's thought (recall also this post on Utilitarianism). It is quite amazing, horrifying, really, to see this moral prophet of progress regress so sensibly from, say, Smith's or Bentham's perspective.*
But my present focus is something less essential to Mill's argument, but still worth marking. Mill recognizes that public opinion may be a possible check and likely correction to potential abuses of legally sanctioned power. We expect no less from the author of Of Liberty.
But recall that in Of Liberty, Mill is rather despairing about public opinion in reality; it not only tends to be conformist, but, even when of good will, can also be intimidated and silenced by dedicated, or strategic, vituperative speech. In the passage quoted above, Mill goes on to claim that public opinion is least likely to deter those most in need of deterrence. And the reason for this is not just that such men have no shame or sense of conscience of wrongdoing, but that opinion can be corrupted by -- and here he echoes Adam Smith -- (recall this post) the sympathy of like-minded, that is, the power of faction ("such men are in general within the reach of no opinion but that of men like themselves.")
Mill's recognition of the limitations of free speech are too infrequently recognized.** He knows that public opinion is corruptible and that interested groups can side with oppressors. In fact, if I understand his present argument correctly, he assumes that for public opinion to function properly people must be in some sense not just be receptive to moral argument, but also not so base, that they won't act on it. That is to say, Mill's defense of free speech and the fruitfulness of public opinion relies on the idea that society is, in some sense, already a moral community (or aspiring to be one).
It doesn't follow, of course, that when society is (manifestly) an immoral community, one should automatically prevent, however tempting this may be, free speech or the exercise of public opinion. But it does follow that one should not be (let's use a Millian phrase) unthinking about the very predictable harms that follow from such freedoms.+
*It's horrifying because if it can happen to somebody so sensitive as Mill none of us is immune.
**Recall Jill Gordon's fine article.
+One may ask: To what end? The harms subsequent to these freedoms require a candid evaluation such that they can be mitigated and, if possible, eliminated.
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