This article is written by Vedant Saxena from Rajiv Gandhi National University of Law, Punjab. It discusses how John Stuart Mill’s ideas of utilitarianism help promote constitutionalism.


John Stuart Mill, although an active disciple of Jeremy Bentham, was diverse in his understanding of ‘pleasures’. He took up a qualitative understanding of happiness and categorized it under the domains of ‘high’ and ‘low’. He favoured the manifestation of pleasures derived from intellectual faculties, over sensory ones. Intellect wasn’t a prerequisite for desiring banal, sensual pleasures, and Mill considers such pleasures equivalent to animal desires.

Real societal prosperity is determined by the number of people seeking higher pleasures, which invited certain amounts of individuality and intellect. He writes, “It is better to be a human being dissatisfied than a pig satisfied; better to be Socrates dissatisfied than a fool satisfied”. Therefore, for society to flourish in the best possible manner, the government must ensure that the masses are given the liberty to go about developing a sense of individuality, in order to seek higher pleasure. The greater the number of individuals enjoying higher pleasures, the greater is the net happiness of the society, which is the very aim of the principle of utilitarianism.

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The conflict between authority and liberty 

The conflict between authority and liberty has been ensuing since time immemorial. Greater authority ensures lesser liberty, and greater liberty forbids higher authority. Since Mill’s propositions were based upon the principles of utilitarianism, he advocated for minimal governmental authority. He refers to the state as ‘a necessary evil’. In the event of a conflict of individual liberties, the state’s intervention is absolutely essential. This principle is summarised in the following words, “Your right to swing your fist ends where my nose begins.” Such action would invite certain restraint on one’s liberty, but since the principles of utilitarianism long for the overall happiness of the society, it is permissible. Hence, the state must ensure that in the process of going about the quest for higher desires, one must not derail the interests of others. 

Defining harm 

John Stuart Mill says that in the event of a person enjoying liberty at the cost of somebody else’s rights, which includes harm, the government must intervene. However, how does Mill exactly interpret ‘harm’ in this regard? Harm is essentially an unlawful injury caused to a person. When a person, while staying well within his legal rights causes injury to somebody else, he won’t be considered to cause any harm. For example, causing financial losses to a person by opening up a rival business/firm. Mill writes: “Whoever succeeds in an overcrowded profession, or in a competitive examination; whoever is preferred to another in any contest for an object which both desire, reaps benefit from the loss of others, from their wasted exertion and their disappointment. But it is, by common admission, better for the general interest of mankind, that persons should pursue their objects undeterred by this sort of consequences.”

An important point in this regard is that harm could be caused both by action and inaction. Harm may not always be inflicted actively; an omission to act could also be deleterious to others. In this regard, Mill quotes: “No person ought to be punished simply for being drunk, but a soldier or a policeman should be punished for being drunk on duty”. 

Mill’s suggestions to help ensure limited government

Just as his predecessor Jeremy Bentham, John Stuart Mill did not believe in the concept of natural rights. Rather, in order to promote overall societal welfare, the government must grant certain citizenship rights to its citizens. Such rights act as checks on governmental authority. For instance, the American Bill of Rights, ratified in 1791, guarantees certain fundamental rights to its citizens. Imposing constitutional checks on the government is another way to ensure minimal government. The most significant one of them is the concept of democracy. Democracy grants the common folk the right to elect their government. 

However, there may emerge class differences, and democracies may take a detour leading to ‘tyranny of the majority’, as explained by Mill in his book, ‘Considerations on Representative Government’. Since the system of democracy operates upon the principle of majority vote, the government might well ensure the sole prosperity of the majority class, resulting in minority oppression. Mill regards such tyranny to be a lot more debilitating than that of a tyrant. The masses may rise up against the despotism of the tyrant, and overthrow him. However, such privilege is not enjoyed in a democracy, since overthrowing an entire majority group is not feasible for the minorities. For instance, the German persecution of the Jews during the holocaust. 

These are the reasons why Mill sought minimal governmental interference. Even in instances when an individual may pursue acts that are detrimental to his own health, the state doesn’t have a right to interfere. Individuality is the essence of utilitarianism. A person exercises absolute sovereignty over his mind and body, as long as he doesn’t curtail the liberties of others, which is when the state must come into the picture. This yet again brings forth the indispensability of citizenship rights, especially amid democracies. Paramount among these is the right not to be discriminated against on the grounds of caste, creed, sex, religion, gender and place of birth. 

Rights with respect to the incompetent 

Mill, however, argues that such liberties must only be provided to competent citizens, who are aware of their rights. For instance, children are not usually expected to possess rational thought and act logically. Therefore, he says that for their own very good, children must not be allowed to exercise such liberties. In the same sense, he justifies colonization. He considered people of the third world countries backwards, with no sense of rationality or intellect. Therefore, he regarded the advent of colonization as a boon for the colonies, as the rulers instilled in them a sense of rational thought, which is quintessential for desiring higher pleasures. For instance, Thomas Babington Macaulay, a British historian and Whig politician, considered the British rule over India as a ‘civilizing mission’.

Types of liberties according to Mill

The freedom of thought and emotion 

According to Mill, the freedom of thought and emotion must be absolute. A person exercises complete sovereignty over his thoughts and emotions. This freedom includes the right to free speech. Under no circumstances can a person be compelled to be silent. In Mill’s words: “If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he if he had the power, would be justified in silencing mankind.”

Mill explains that the intention behind framing the right to free speech lied in the belief that no person could either be absolutely right, or absolutely wrong. For instance, a person presents a speech, the majority of which is composed of lies. However, there still would exist a minimal degree of truth. This could prove to be beneficial for others, as it could question an older truth. According to Mill, if the truth were not challenged, reality would never really be able to manifest itself. The very basis of science operates upon this paradigm shift. However, in the event of going about this liberty merely to incite violence or cause harm to others, it could be restricted. 

Freedom to pursue ‘taste’ 

People must be entitled to act upon anything that makes them happy. In the context of self-regarding actions, a person exercises complete autonomy over taking up deeds that might be deleterious to his own self. After all, the pursuit of happiness is the primary agenda of the principle of utilitarianism. Although in the event of a person exercising liberties at the cost of somebody else’s demise, the state needs to interfere. For instance, smoking per se is not a wrongful act, but going about it in public places must be forbidden.

Freedom to unite

Freedom to unite refers to the privilege wherein people are free to pursue sexual relations with others, and the state is not entitled to interfere in such matters. For instance, Mill advocated for the decriminalization of homosexuality. However, there do exist a few limitations. Firstly, the people entering into sexual conduct must essentially be adults. The Indian Majority Act, 1875 defines an adult as a person who has attained the age of 18 years. Since Mill does not consider minors to possess a valid sense of reasoning, they are not entitled to this liberty.

Any adult entering into sexual relations with a minor would be considered performing rape. Secondly, both parties must consent to such an act. Using force or deceit for inducing somebody into a sexual affair would again be considered rape. Thus, Mill said that citizens, primarily of the developed states, must essentially be granted such liberties, for higher pleasures to flourish. With reference to people of third world countries, the Europeans must first instil in them a sense of rational outlook, after which they must be granted these liberties. 

Practical applications of Mill’s theory

Sale of alcohol

Although the use of alcohol might well be deleterious to a person’s health and reputation, Mill doesn’t call for strong regulation. He does stand against its excessive use by favouring alcohol licensing. He considered it fit to confine the power of selling these commodities (at least for consumption on the spot) to persons of known or vouched-for respectability of conduct. He also encouraged the framing of such regulations that would respect hours of opening and closing as may be requisite for public surveillance, and the withdrawing of licenses if breaches of the peace repeatedly take place through the connivance or incapacity of the keeper of the house. 

Sale of poisons

In the event of poisons being purchased solely for the purposes of causing harm, an absolute bar on its manufacturing and sale could have been justified. However, there exist a number of benefits associated with poisons. For instance, the medical branch employs the use of poisons for manufacturing a variety of drugs. Poisons are also effective in getting rid of unwanted pests and weeds. According to Mill, if poisons were never bought or used for any purpose except the commission of murder it would be right to prohibit their manufacture and sale. They may, however, be wanted not only for innocent but for useful purposes, and restrictions cannot be imposed in one case without operating in the other.


According to Mill’s propositions, a person is free to commit any act as long as the act does not cause harm to others. This would also mean that a person is at liberty to take his own life, for while doing so he would be harming nobody but himself. Mill thinks that is their prerogative and their right. This idea on its face seems to be rather simple, but in reality, it is a complex issue that can take many different twists and turns. 

The individuals who commit suicide are usually the ones outcast by society. Subsequently, they develop a sense of deprivation or detachment from society. They eventually lose their sense of belonging with the other members of society, and as a result, take their own lives. Therefore, suicide is not merely an act committed by an individual out of his own violation, rather it is a result of other peoples’ actions affecting his psyche. For instance, findings suggest that introverts are more vulnerable than extroverts to depression and decreased mental well-being, for they possess lower self-esteem than extraverts and also have less social support than extraverts.

Western culture gives preference to extraverted individuals, which pressures introverts to attempt to change their personalities. Therefore, suicide is a grey area in Mill’s theory, for it could never really be asserted that a person takes his own life out of his own violation. 

Justification of slavery

Although Mill, in the context of his ‘harm principle’ puts a person at liberty to harm his own self, he does make a slight manoeuvre with regard to the concept of slavery. On account of his utilitarian propositions, Mill did not favour slavery. He went on to assert that no one should even volunteer to be a slave, because, whether voluntarily or otherwise, it would be against the overriding principle of freedom. He explains: “by selling himself for a slave, he abdicates his liberty; he foregoes any future use of it beyond that single act. He, therefore, defeats, in his own case, the very purpose which is the justification of allowing him to dispose of himself. He is no longer free; but is thenceforth in a position which has no longer the presumption in its favour, that would be afforded by his voluntarily remaining in it.”


It could be concluded that John Stuart Mill was an ardent advocate of constitutionalism. His primary aim was the overall happiness of society, and therefore he focused on promoting the greatest amount of pleasure for the greatest number of people. Modern thinkers drew heavy inspiration from his principles, in advocating for liberty, equality and fraternity.


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