Abstract

A fundamental question for the ethical foundations of public health concerns the moral justification for limiting or overriding individual liberty. What might justify overriding the individual moral claim to non-interference or to self-realization? This paper argues that the libertarian justification for limiting individual liberty known as the ‘harm principle’ or the ‘Millian paradigm’ is inadequate as a basis of public health ethics and policy. But simply pitting some collectivist value or utilitarian criterion over against individual liberty is not theoretically satisfactory, either. John Stuart Mill himself was not a Millian, in this sense, and his utilitarianism does not pit itself against individual liberty as a situation of balancing conflicting values. A reconsideration of Mill, particularly in light of the later work of Berlin on liberty, points toward a conception of relational liberty that is crucial for public health ethics because it contains within itself the basis for its own moral limitation.

Why is it necessary that all human life should point to one object, and be cultivated into a system of means to a single end? May it not be the fact that mankind, who after all are made up of single human beings, obtain a greater sum of happiness when each pursues his own, under the rules and conditions required by the good of the rest, than when each makes the good of the rest his only object, and allows himself no personal pleasures not indispensable to the perseveration of his faculties? The regimen of a blockaded town should be cheerfully submit to when high purposes require it, but is it the ideal perfection of human existence?

—John Stuart Mill (1985: 337)

Public health came into existence during the past two hundred years when the modern state realized that it had an interest in the health of its citizens and when medical science and epidemiology made state intervention in population health a practical possibility. These developments occurred not only at a time when the state was taking on new social welfare functions, but also when the basic purposes and legitimacy of the state were being conceived in new ways.

Paradoxically, just as science was giving the state the ability to affect people's lives with a new-found efficacy, the normative conditions for the justification of the use of that power were becoming more stringent. In earlier eras, when ethics and political philosophy placed few limitations on the exercise of state power, there was little governments could do to improve the everyday lives of large numbers of people. But during the course of the nineteenth century, even as the financial, organizational and scientific wherewithal to intervene in economics, education and health was achieved, the normative justification for that intervention became problematic. This was due to a public philosophy and a political morality that placed high value on the liberty and property of individuals and sought to protect them from the state, even from benevolent state policies designed to promote health and welfare. That public philosophy is liberalism.

The aim of this paper is to explore the place of the value of individual liberty or freedom (I use the terms interchangeably) in public health ethics. This is not simply a question of treating freedom as one value among others that public health serves, and then balancing it against health, safety, prudence, preventing harm to the health of others and the like. Beyond this rather narrow formulation of the process of normative inquiry, there is the more radical question of how the meaning of freedom is to be understood in the context of a dynamic liberal tradition and changing social reality.

The Importance of Liberalism for Public Health

Liberalism is complex and cannot easily be reduced to one coherent theory or to the writing of one or a few theorists (Plamenatz, 1973). Nonetheless, for our purposes here, its main outlines might be characterized in a few words—champion of science and the progressive growth of knowledge; revolutionary opponent of absolutism and authoritarianism; defender of the liberty of the individual and the peaceful coexistence of diverse social groups; founder of constitutional parliamentarianism, representative democracy and the rule of law; promoter of capitalism, entrepreneurship and the work ethic; and vigilant skeptic concerning the use of all political power, including that fostered by its own institutions and its own state.

During the last three centuries, partly reflecting and partly prompting the social changes indicated by this skein of trends and values, liberalism has taken several shapes and has been refined into several variants. Among these, the two most important forms for understanding the normative and ideological context of public health are ‘contractarianism,’ which has an egalitarian (egalitarian liberalism) and a libertarian (libertarian liberalism) variant, and ‘utilitarianism’ (welfarist liberalism). Contractarian theories of justice (and rights-based theories) give moral and political priority to certain principles of right (protection of basic liberties, distributive equity and non-discrimination) over policy considerations of net aggregate social benefit—rights ‘trump’ social utility in Ronald Dworkin's memorable phrase (Dworkin, 1977). They also tend to be more focused on individual moral worth and difference than is utilitarianism, which tends to eclipse individual uniqueness behind more general common traits and experiences (Sen and Williams, 1982).1

Public health ethics (that is to say, the ethical justification of public health programs and practices) is a child of liberalism—of these liberalisms. The language of policy justification that liberalism offers public health is primarily a language of rights, liberties, obligations and autonomy, on the contractarian side; and a language of interests, utilities, preferences and beneficence, on the utilitarian side. Liberty-limiting state actions are subject to a calculus of risk–benefit ratios, means–end rationality and the balancing of individual rights of self-determination with obligations of self-restraint. The liberty, autonomy and respect due to adult individuals are pitted against the prevention of harm to self and others and the maximization of net benefit across a population.

At first glance, a tradition made up of contractarian political theories (founded in natural law and natural rights theory) and utilitarianism (a radical philosophical reform movement based on a thorough-going critique of natural law theology and jurisprudence) would seem unstable and incoherent. Fathered by John Locke, contractarianism is clearly liberal and individualistic, but utilitarianism, sired by Jeremy Bentham, seems more prone to collectivism and majoritarian democracy. The rapprochement between them is due, in part, to the merger of utilitarianism with classical economics, so-called ‘Manchester’ or laissez-faire liberalism, which gave it a more individualistic and liberty-defending aspect (Macpherson, 1977). But probably a main reason for the synthesis of individualistic and utilitarian elements in modern liberalism is owing to the work of one extraordinary and widely influential thinker, John Stuart Mill. More or less single handedly, Mill redefined liberalism, shaped its normative agenda and created its most characteristic ways of framing ethical and political issues. Sir Isaiah Berlin, Mill's strongest and most anxious reader, captures Mill's achievement well: ‘He was not original, yet he transformed the structure of the human knowledge of his age.’ (Berlin, 1969b: 205). His achievements in ethics and political theory remain active and vital within our thinking even today, and his legacy is nowhere more apparent or enduring than in public health. How is the meaning of freedom is to be understood? In thinking about this question, a solid grasp of Mill remains indispensable.

It is also important to appreciate how this central question was sharpened, and to some extent reformulated, by Berlin's critical appropriation and revision of Mill. Berlin exposed a crucial ambiguity in Mill's own understanding of liberty, and he thereby laid bare, in a way that Mill had avoided or tended to obscure, the nature of the moral and political problem that freedom poses for public health. Berlin did this by driving a sharper wedge between the subjective warrant for the freedom to live one's life in one's own way (negative liberty, or freedom from) and the objective or rational warrant for that freedom (positive liberty, or freedom to).

Mill's progressive liberalism hoped that these two warrants would gradually and generally be reconciled and would converge as enlightened civilization matured and as obstacles to the equal sharing of its benefits were overcome. Mill is perhaps most explicit about this in an early essay, ‘The Spirit of the Age,’ but he alludes to it throughout his life and in his main writings. Thus in On Liberty he explains, almost as an aside, that his principle of liberty must be understood as applying to man as a ‘progressive being.’ (Mill, 1956: 14; 86–89). In ‘Utilitarianism’ he quietly but decisively breaks with both Jeremy Bentham and James Mill (his father) in broadening the concept of happiness in a way that suggests his progressive and developmental conception of the human good:

According to the greatest happiness principle … the ultimate end, with reference to and for the sake of which all others things are desirable—whether we are considering our own good or that of other people—is an existence exempt as far as possible from pain, and as rich as possible in enjoyments, both in point of quantity and quality; the test of quality and the rule for measuring it against quantity being the preference felt by those who, in their opportunities of experience, to which must be added their habits of self-consciousness and self-observation, are best furnished with the means of comparison. (Mill, 1957: 16).

In his own work, Berlin shifted us from this kind of progressive liberalism to a pluralistic liberalism that retains Mill's appreciation of social and individual diversity, but rejects any notion that history (or ‘civilization’) is a process that sorts through and prioritizes human values. Here freedom must be embraced without recourse to the belief that making it a widespread social practice will eventually lead to its compatibility with human flourishing or well-being. For pluralistic liberalism, there is no final condition of human flourishing or the good toward which any political practice or moral value will lead because the good is necessarily plural and necessarily evolving, open ended and incomplete (Walzer, 2004). Historical attempts to impose a hegemonic conception of the good lead not to the greater realization of our humanity, but to its degradation. Examples of tyranny or totalitarianism are easy cases, but Berlin insisted on this critique even when the ideal of the human good is as enlightened as Mill's conception of happiness or is as benevolent as the goals of health and well-being that historically have animated public health at its best. Berlin goes so far as to define liberalism in this way:

For the … liberal tradition … no society is free unless it is governed by at any rate two interrelated principles: first that no power, but only rights, can be regarded as absolute … and, second, that there are frontiers, not artificially drawn, within which men should be inviolable, these frontiers being defined in terms of rules so long and widely accepted that their observance has entered into the very conception of what it is to be a normal human being … ” (1969a: 165).

And he goes on to emphasize this protected space around each individual, or negative liberty, as the key to understanding Mill:

For him [Mill] man differs from animals primarily neither as the possessor of reason, nor as an inventor of tools and methods, but as a being capable of choice, one who is most himself in choosing and not being chosen for; the rider and not the horse; the seeker of ends, and not merely of means, ends that he pursues, each in his own fashion: with the corollary that the more various these fashions, the richer the lives of men become; the larger the field of interplay between individuals, the greater the opportunities of the new and the unexpected; the more numerous the possibilities for altering his own character in some fresh or unexplored direction, the more paths open before each individual, and the wider will be his freedom of action and thought. (1969b: 178)

The Millian Paradigm

With this historical and conceptual background in mind, it is time to approach the basic principle with which Mill defined the conditions for the normative justification of state action and the limitation of individual liberty. This principle, often referred to as the harm principle or the liberty principle, forms the centerpiece of the framework or paradigm that has been a bridle on the welfarism and authoritarianism of the public health function of the liberal state. The central formulation comes from the opening of On Liberty:

… the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him or visiting him with any evil in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to someone else. The only part of the conduct of anyone for which he is amenable to society is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign. (1956: 13)

Let us consider one important example that shows both how pervasive the Millian paradigm has been and how it can be articulated both in ethical/political theory and in constitutional law. The text in question is the important 1905 decision of the US Supreme Court in Jacobson v. Massachusetts. In this case Henning Jacobson refused to comply with a public health ordinance in Cambridge, Massachusetts, requiring smallpox vaccination. Having lost in state court, Jacobson appealed to the Supreme Court on the grounds that the public health policy of mandatory vaccination violated his right to freedom and equal protection of the law under the Fourteenth Amendment of the US Constitution. The court denied Jacobson's claim and ruled to uphold the Massachusetts public health law requiring him to submit to vaccination or to face a fine or imprisonment. (The fine in question that he refused to pay was $5.00.)

Since the mid-nineteenth century when the Fourteenth Amendment was enacted, it has been the textual focal point for the balancing of individual liberty and state authority in American constitutional law. The Jacobson decision set out the elements of Fourteenth Amendment jurisprudence that is still used by the federal courts in the United States today.2 This jurisprudence sets up a balancing test to weigh the individual's liberty interests against the legitimate duties and functions of the state and inquires whether or not the state policy in question is reasonable and whether the state or public interest in question is compelling. It is significant in public health law because it clearly sets forth the nature of the police powers granting the state, through its public health agencies, the authority to protect the community from threats to its health and safety.

At times the language of the court opinion (written by Justice Harlan) seems strongly communitarian:

It is a fundamental principle of the social compact that the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for ‘the common good,’ and that government is instituted ‘for the common good, for the protection, safety, prosperity, and happiness of the people, and not for the profit, honor, or private interests of any one man, family, or class of men.’ The good and welfare of the commonwealth … is the basis on which the police power rests … (Jacobson, 1905: 208).

In summarizing Jacobson's claim, the opinion is eloquent in expressing both sides of the individualism/community tension:

The defendant insists … that a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for this own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person. But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. (Jacobson, 1905: 208).

However, as if remembering the admonitions of John Stuart Mill, the Court goes on to qualify and narrow the implications of the state power founded on community covenant and the common good:

There is, of course, a sphere within which the individual may assert the supremacy of his own will, and rightfully dispute the authority of any human government … to interfere with the exercise of that will. But it is equally true that in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations … (Jacobson, 1905: 209–210)

This passage echoes Mill's own language and his formulation of the harm principle quoted above. The limitations set up here are suggested by such phrases as ‘great dangers’ and ‘reasonable regulations.’ The Court is persuaded by the nature and consequences of a disease like smallpox that the necessary threshold of danger has been passed. Reasonableness has to do with how effective the public health policy is, and it has to do with whether vaccination is the only effective alternative or the least violative of individual rights and liberty. But reasonableness also has to do with the seriousness of the impact on the individuals to whom the policy applies. Accordingly, Harlan is also quite concerned with Jacobson's failure to show that he himself would be placed at undue medical risk by receiving a vaccination. Apparently the Court is willing to balance his liberty against the protection of the community, but not necessarily his life or health. Indeed, it could very well be in this instance that his life and health are on the side of community and not on the side of individual liberty.

A similar tacking back and forth between conflicting values and extreme claims is evident in the way the Court understands the basis and application of the police power. It is inherent in the very notion of the state, which is established essentially for the self-preservation and defense of its citizens. But this conception alone does not go so far as to establish intrinsic value in the community itself. In fact, sufficient justification for the limitation of individual liberty by state authorities can be found within the logic of the concept of liberty alone, without recourse to community at all. This argument, familiar in the contractarian tradition of political theory at least since Hobbes, has to do with the self-contradictory nature of unlimited freedom. Justice Harlan expresses it this way: ‘Real liberty for all could not exist under the operation of a principle that recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.’ (Jacobson, 1905: 208).

And after affirming the public health authority against Jacobson's individual claims in the circumstances of this case, the Court goes out of its way to make clear that individual rights remain at the center of its legal, constitutional—to say nothing of its political and ethical—vision. The Court ‘should guard with firmness every right appertaining to life, liberty or property as secured to the individual by the supreme law of the land …’ (Jacobson, 1905: 214). And there are certain types of state policies, even in the domain of public health, that cannot be justified by appeal to community interests alone:

Before closing this opinion we deem it appropriate, in order to prevent misapprehension as to our views, to observe … that the police power of a state … may be exercised in such circumstances, or by regulations so arbitrary and oppressive in particular cases, as to justify the interference of the courts to prevent wrong and oppression. (Jacobson, 1905: 214–215)

In the final analysis, this text is not a vindication of community over the individual. On the whole the concept of community it offers is an aggregative one, and it keeps public health within the confines of the Millian paradigm by making harm to others the dividing line between public and private, licit freedom and illicit freedom, liberty and license.

The deeper problem of the foundation of the authority of public health state action therefore remains unsolved. As the Nuffield Council has argued, public health ethics requires a more collective perspective than the Millian paradigm allows:

Public health often depends on universal programmes which need to be endorsed collectively if they are to be successfully implemented. Although the initial liberal framework supports the promotion of public goods and services, it presents these primarily as ways of promoting individual welfare. Hence, it does not adequately express the shared commitment to collective ends, which is a key ingredient in public support for programmes aimed at securing goods that are essentially collective. (Nuffield Council on Bioethics, 2007: 23).

Transformations in the Philosophy of Freedom

Freedom is often used to designate a condition (or a potentiality) of mind and agency that inhere in individuals as a matter of right. The right to be allowed to be free is a moral claim that can be made against others who are in a position to impede or destroy one's freedom and who thereby have a correlative obligation of non-interference. Private individuals may fall into this category, but the right to be free quintessentially applies against those who wield institutional power or the police power of the state.

Liberals may most simply be defined as those who value the right of individual freedom very highly, often above all else. They differ among themselves about how far this right goes morally. Some believe that it creates a negative obligation of forbearance (non-interference) only; others think that it also sets up a positive obligation of assistance by others to assist the individual in obtaining the resources and capacities that will make his freedom meaningful. The first want to protect individuals against the exercise of power by others; the second want to enable individuals to exercise power for themselves. This is the distinction between so-called civil rights and welfare rights, and it is the distinction, roughly, between libertarians and market liberals on the one hand and egalitarians and social liberals on the other.

At least from the time of the New Deal era, public health in the United States has combined a kind of scientific positivism with this second type of social liberalism, and that has given the field its distinctive identity and niche in American politics. And even though Mill's great work, On Liberty (1859), is often taken to be a defense of the libertarian strand in liberalism, his work as a whole (and even a nuanced reading of the way Mill applies his libertarian liberty principle in the final chapter of On Liberty) shows him moving judiciously but steadily toward social liberalism. In the few writings he devoted to issues that were recognizably related to public health, such as vaccination and municipal water supply, Mill moves across this spectrum, sometimes using liberty to put the brakes on public health authority and paternalism, and sometimes evincing clear support for state responsibility to remove impediments to the expansion of freedom, through promoting better health and hygiene, for the poor and the working classes.

These differences, while very important, are pragmatic and policy differences. A more fundamental question for the ethical foundations of public health concerns the moral justification for limiting or overriding individual liberty. Does the concept of freedom contain within itself the basis for its own moral limitation? If freedom is not self-limiting from within, what justifies the imposition of external limits on it? What might justify overriding the individual moral claim to non-interference or to self-realization?

Although a full discussion is beyond the scope of this essay, a brief consideration of the differences between the philosophies of freedom developed by Immanuel Kant and Mill helps to gain a purchase on these questions. I take it that Kant is the paradigmatic philosopher in the liberal tradition who built objective limitations into the concept of freedom. Kant's ethics is more focused on moral duty and moral law than on individual or natural rights.3 Genuine freedom, or what Kant called autonomy, is obedience to self-imposed law, but not just any law may be imposed and not just any aspect of the self may do the imposing. Biased and unfair rules are not truly moral rules; and desire or emotion has no role in recognizing moral duty. Freedom is not the opposite of obedience to rules; without rules there would be not freedom but chaos and self-contradictory and self-defeating license. True freedom or autonomy is obedience to the moral law or categorical imperative as it is discerned by the exercise of reason. So the moral limits imposed by reason, justice and impartiality are all built into the concept of freedom. Restraining or overriding freedom is not really a problem for ethics, and mutatis mutandis, it is not a problem for politics, policy or public health either. The real problem is discerning the difference between true and false freedom, freedom and license.

By contrast, Mill did not turn to reason as a check on freedom or as a solution to the dilemma of liberty. Mill was a naturalist and was more concerned with individual choice and action in a context of political and social constraint. Reason is not a formal and universal kind of knowing for Mill, and it does not establish the formal preconditions for either autonomy or right. Reason is a faculty for determining conduct and for the choice of means to protect and preserve interests and desires, particularly those compatible with cooperative and mutually beneficial life with others similarly motivated and inclined.

Hence with Mill one finds a version of subjectivity introduced into the notion of freedom because each person is the most reasonable custodian and definer of his or her own interests and objectives. If the power to determine those interests is exercised over one by others, especially by officials of the state, one is deprived of liberty and one is hampered in the development of intelligence, skill and self-reliance that Mill considered to be some of the hallmarks of human flourishing. For Mill, there is no independent standard of reason to determine if one use of freedom is inherently superior to another; the individual should decide as a matter of right, and if individuals are permitted by social and political arrangements to have this liberty, the society as a whole will prosper and the arrangement will be justified from a utilitarian point of view. Ultimately for Mill what justifies freedom is not a standard of universal reason, but a conception of the human good—happiness in a broad intellectual and emotional as well as a hedonistic sense—coupled with a background conception of history as a progressive cultural movement in the direction of greater human complexity and expanded sensibilities.

This line of thinking has been enormously influential, but it takes on a more subjectivist and libertarian implication than Mill himself would have been comfortable with when one removes that background conception of the human good and philosophy of history and culture. Shorn of these philosophical commitments, freedom ceases to be answerable to anything higher than itself (Gaylin and Jennings, 2003). Of course one can say that freedom is but one good or value among many and has to be set against other values in order to determine what to do in order to realize ones goals. But freedom is not simply one good among many, it is the medium of pursuing and realizing all the other goods; it is the condition of agency itself and so more fundamental or basic in a way than any other value. The same point is often made about health. If I am too sick to fulfill my goals or to enjoy my projects, then freedom has little actual value in my life. True enough. But would one rather be a healthy slave or an ill freeman? At least a free person can seek medical care or otherwise try to compensate for illness. The health of a slave is sustained only at the whim of the master and can be taken away at any time because obedience has taken the place of freedom in the slave's life.

How can an open, liberal society—one in which each individual has a wide range of freedom and opportunity to live his or her own life in their own way—also be an objectively healthy and well-off society, one in which each individual follows the best available evidence and scientific advice in matters of life-style and risk-taking behavior? How can state power be kept to a minimum while each individual is protected against hazards of a structural kind which are not voluntary and over which the individual has little control or protection? These questions indicate the dilemma at the heart of modern politics, or at least liberal politics. Resolving this dilemma calls for a reconciliation of subjective preference and belief with objective knowledge; of individual autonomy with paternalistic authority; of freedom of choice among many options (including those imprudent and risky) with rules, habits and coercive measures that represent the best collective knowledge, wisdom and rationality available to society at the time. It calls, in short, for the reconciliation of freedom with health and happiness.

The centrality of this question for public health is clear. One may be tempted to argue that this liberal dilemma is not public health's dilemma because public health stands foursquare on the side of health and happiness. This moral outlook on public health has been expressed by any number of public health practitioners from the mid-nineteenth century on. Here is one representative expression of the view by Herman Biggs, a highly influential American health official, who implemented a new set of public health interventions around the turn of the twentieth century. In 1897 Biggs wrote: ‘The government of the United States is democratic, but the sanitary measures adopted are some time autocratic, and the functions performed by sanitary authorities paternal in character. We are prepared, when necessary, to introduce and enforce, and the people are ready to accept, measures which might seem radical and arbitrary, if they were not plainly designed for the public good, and evidently beneficent in their effects’ (Biggs, 1897: 28, note 2).

So liberty is not public health's concern and Dworkin's rights are not trumps in the game it plays. This response is too facile because it does not do justice to the complex value commitments that the field of public health has had historically, and most especially those it has had since confronting the AIDS epidemic in the 1980s (Bayer and Fairchild, 2004).

Moreover, this response is too simple because of what public health itself has learned about the conditions under which individuals and populations experience health and illness. In combating the spread of infectious disease, or in protecting against exposure to environmental toxins, public health may find itself on the side of coercion against individual liberty. But such clear-cut situations are rare in contrast to the much more complex, behaviorally related health risks with which contemporary public health ordinarily deals (Leichter, 1991). Measures that do not respect the liberty and value-orientations of individuals often turn out to be counterproductive from the point of view of increasing health because they undermine trust, compliance and cooperation with public health interventions. In short, public health has learned, and can teach political theory, that the liberal dilemma is in fact more difficult to resolve precisely because the values in tension here are in fact not completely separate, but are intertwined in everyday life. Liberty does not trump health, and health does not trump liberty either. Both are implicated in the realization of the other.

Here it is helpful to return to Isaiah Berlin. Far from lamenting this subjective turn in the philosophy of freedom, he uses an ingenious argument to construe it as a bulwark against modern totalitarianism. In this way he is somewhat reminiscent of Alexis de Tocqueville and Benjamin Constant, contemporaries of Mill who were also concerned about the rise of mass conformity and loss of individual difference in modern society. Neither of these French liberals shared Mill's philosophy of history and so did not interpret the liberal defense of individual freedom in quite the same way. But it took nearly 100 years before the issue was clearly joined in the distinction between ‘negative liberty’ and ‘positive liberty’ that was coined by Berlin in his important essay, ‘Two Concepts of Liberty’ (1958).

Negative liberty has to do with establishing a zone of privacy and non-interference around each person, a zone within which the person can exercise his own faculties and pursue his own life in his own way. Berlin explains the concept this way:

The defence of liberty consists in the ‘negative’ goal of warding off interference. To threaten a man with persecution unless he submits to a life in which he exercises no choices of his goals; to block before him every door but one, no matter how noble the prospect upon which it opens, or how benevolent the motives of those who arrange this, is to sin against the truth that he is a man, a being with a life of his own to live. (1969a: 127)

Negative liberty appeals to metaphors of space. It wants elbow room, a place of one's own. It is the single-family dwelling of ethics. Negative liberty requires fences and boundaries for protection against outside intruders. It rests on a conflict-ridden and antagonistic picture of social existence, in which each individual struggles with everyone else to control his own patch of ground.

Positive liberty, by contrast is a form of self-mastery. Berlin explicates it this way:

The ‘positive’ sense of the word ‘liberty’ derives from the wish on the part of the individual to be his own master. I wish my life and decisions to depend on myself, not on external forces of whatever kind. I wish to be the instrument of my own, not of other men’s, acts of will. I wish to be a subject, not an object; to be moved by reasons, by conscious purposes, which are my own, not by causes which affect me, as it were, from outside. I wish to be somebody, not nobody; a doer—deciding, not being decided for, self-directed and not acted upon by external nature or by other men as if I were a thing, or an animal, or a slave incapable of playing a human role, that is, of conceiving goals and policies of my own and realizing them (1969a: 131).

One is free in the positive sense when one's reason, one's higher self is in charge of one's conduct. Negative liberty is the absence of control by others; positive liberty is more like self-control. Berlin is suspicious of positive liberty as a manifestation of a dangerous objectivist, universalist conception of the fully human person and the fully human life. In the name of attaining this ideal, individuals have been asked, or required, to subordinate their ordinary freedoms and interests to Causes, with a capital C. Totalitarian ideologies of the mid-twentieth century talk of reforming and improving ‘human nature’. This is the dark side that Berlin sees not only in various romantic and irrationalist bodies of thought, but in the legacy of Kantian rationalism and Millian utilitarianism, as different as they are.

Let us be candid: Public health is not a natural ally of individual liberty. The concept of freedom does pose a deep problem for public health ethics. But this is a problem that cannot be resolved within the understanding of freedom that Mill and Berlin have given us. In that understanding freedom is non-interference (freedom from) and individual self-realization (freedom to). Let us call these the first and second freedoms. Public health is a domain of political and moral practice that is fundamentally linked to freedom in a third sense, which can be called mutual care or freedom through transactions and relationships with others.

The third freedom (freedom through) is a warrant to live one's own life in one's own way that results from embedding that way of life in a tradition, a civic life of shared purpose, and rooting that life in membership in broader community. Just as there are certain kinds of practice or activity that by their very nature cannot be done alone, so there is a kind of freedom that subsists not in separation from others but through connection with them. Not in protections but in pacts of association; not in locked doors but in open ones; not in fences but in circles; not in rights but in relationships.

The first and second freedoms are insufficient no less for a robust, sustainable form of liberalism in the twenty-first century than for public health ethics. They are lacking because they fail to convey an essential feature of human agency, and hence of human being: namely, how agency relies on community (a space of relationship and mutuality) as a context of interpretation and the constitution of meaning. The first and second freedoms are fundamental, without question, but a liberalism that comprehends them alone is a political morality incapable of sustaining the normative justification for public health practices outside a very narrow range of safety and harm reduction measures. A more adequate liberalism will be a liberalism of three freedoms that can provide normative justification for—and adequate moral insight about—the kinds of social change public health must seek to effect today: namely, structured transformations in access to power and resources, community renewal and engagement, a broader understanding of the environmental and ecological factors that affect human health and changes that will reduce chronic stress and enhance individual dignity and self-esteem.

Toward Relational Liberty

The principal framework for discussing the legitimacy of public health power and authority that we inherit from Mill and Berlin has two constitutive features. One is that it privileges individualistic values over communal ones—individual liberty trumps community solidarity.4 But the second fundamental feature of the framework is that it sets up a conflict or antithesis between the individual and the community in the first place.

Recall the classic formulation of the Millian paradigm quoted earlier and consider not just what is says about liberty and the limits of state or social coercion and paternalism, but also how it structures our sense of how such a question should even be posed:

… the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant … . The only part of the conduct of anyone for which he is amenable to society is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign. (Mill, 1956: 13)

The framework that Mill establishes in On Liberty, and that Berlin sharpens and refines with his rejection of developmental and perfectionist accounts of human nature, is remarkably devoid of the web of interdependencies, culturally meaningful roles, styles and self-identities and shared values, rituals or practices. In short, it is a world of atomistic individuals each with their own interests, idiosyncrasies, projects and life-plans. In most cases, peaceful and predictable transaction of mutual advantage—in a word, ‘contractual’ relationships—are sufficient to attain these aims. Mutuality based on love, care or sympathy is rarely necessary, and never desirable.

It is not that Mill and Berlin do not recognize the existence of community in actual human life and society; of course they are only too acutely aware of the fact that we are social animals. But the Millian paradigm leads us to discuss virtually all issues in morality and politics, including issues of public policy and public health, using the assumption that community is inherently confining and restrictive; that individuals require an expansive and unencumbered environment within which to grow and flourish; that it is more in keeping with the human good to hustle rather than to huddle. They also assume a kind of reductionistic stance so that whenever an argument is made on behalf of the importance of communal interests or the common good, the first response is to equate that with the hidden interests of some group of individuals who wish to dominate others. Self-interest or small group interest is really the only possibility; the rhetoric and metaphors of community serve only to conceal the true face of those interests and their desire for power. Liberalism brings to public health a spirit of suspicion.

In measured doses that suspicion is healthy enough. The problem arises when it is all we have to inform our moral imagination. How can a new liberalism of community and the third freedom be developed in a way that will not feed into the philosophical justification of totalitarianism that Berlin fears? This question remains pertinent, even as the state fascism and state socialism of the twentieth century have receded (or have they?). Freedom made real and meaningful through relationships and interdependencies with others does require a conception of the human good. If contemporary liberalism is the domain of protecting the first freedom (negative liberty) and few if any theorists today are prone to advocate the second freedom (positive liberty), the task of promoting the third freedom (relational liberty) has fallen to an orientation in political theory usually called ‘com-munitarianism’ (Taylor, 1995). For communitarianism, to call freedom genuine only when it passes the test of transcendental reason is too formalistic, and to limit the meaning of freedom to negative liberty alone is too thin. The missing element in negative liberty has mainly to do with moral duties beyond rights, with relationality, a reaching out to establish modes of solidarity, mutual assistance and care. The world of negative liberty is a world of absences and omissions. As such, it is a clean well-lighted place. The world of the third freedom, freedom through and with others, is a messier space, filled with shadows. It is a much more human space. In it, people do things to and with one another. They cannot get by simply by steering clear. ‘Don't tread on me’ gives way to ‘Help me up.’

There are many variants of ‘communitarianism,’ to be sure. An important aspect of the type of communitarianism that interests me here is the emphasis placed on the concept of community and on the understanding of liberty, self-realization and human flourishing as capacities that require a healthy web or framework of communal relationships. They can neither be understood nor realized in practical life as properties of isolated individuals standing apart from and over against community or relationality as such.

The Millian paradigm is about the limits of both state and social action. Ipso facto it is about the limits of public health authority and practice. A familiar public health example to which this paradigm is applied would be a whole range of risk-reduction policies, such as laws mandating the use of automobile seat belts or safety helmets for motorcycle riders.5 It is important to consider whether this type of liberalism—which gives priority to individual liberty over community solidarity and priority to questions of just distribution of goods over questions concerning the nature of the human good or human flourishing—would not place restrictions on the practice of public health so stringent that it would preclude, at least as a matter of public policy, most of the positive, health promoting, well-being enhancing aspects of the field (Holland, 2007). I close with some reflections on this problem.

There are practical as well as philosophical reasons why public health must go beyond the Millian paradigm and its individualism. They have to do with the kinds of human situations and behaviors that are related to health and disease. Human acts are intentional, purposive and meaningful both to the actors and to others who share in the rule-governed forms of life and communication within a society and culture. The ethical norms that fit into human agency therefore are not limited to self-referential states of interest or desire. In order to understand ethical conduct—or in order to engage in ethical discourses of justification and other forms of argument—one must have recourse to concepts and categories that reflect the relational nature of the human self or actor and the contextual, social nature of the actor's meaningful, symbolically mediated relationships with others (Harré, 1998).

Public health must strive to bring about change at both the level of individual behavior and social norms and institutions. But the individual level in question is already thoroughly social and relational in character, and change at the social level, in the final analysis, is nothing other than a change in the ways in which individuals experience and live their own social being.

In practice this means that for public health to respond to the coming health needs of complex societies, it must have recourse to values and purposes that the members of these societies will understand if they think and act like ‘citizens’ in the classic sense (regardless of their legal or immigrant status) by coming to see private troubles as public problems. Public health professionals must be civic educators. Public health must identify and interpret for society changes in patterns of disease and risk that are not analytically reducible to individual behavior, but have systemic properties that come from structures of interpersonal relationships. Public health must incorporate into its moral discourse concepts of the right and the good that pertain not to individuals in isolation but to selves-in-relationships; not atomistic bearers of interest, preference and desire but social persons whose personal flourishing is inextricably linked to the flourishing of others. In addition to the liberal language of rights, interests and utilities, public health ethics needs the vocabulary of solidarity, mutuality, interdependency, social justice, community and the common good. Beyond the notion of moral obligations that are correlative to the rights and interests of others, public health needs to appeal to a motivational structure that is informed by what has been traditionally called ‘civic virtue,’ which may be defined as an action guiding and self-identity informing sense of responsibility for promoting and sustaining the common good of the community as a whole.6

Without a robust and adequate concept of community, public health will not be able to talk seriously about its own professional identity and values. The field of public health relies on the capacity for people in the population to comprehend the meaning of a common danger or a common good. If the people with whom public health has to deal, in whatever society around the world, have lost the capacity to comprehend these ideas, then it will not be possible to either coerce or empower them to undertake the kind of collective institutional and behavioral change that health deficits in the world today manifestly require, from coping with HIV/AIDS to coping with public health impacts of global climate change.

We are all torn between our private wills and our civic wills, between our interests as isolated individuals or consumers and our moral interests and commitments as members of a community of shared purpose broader than ourselves. This is the symbiosis of the public and the private. In my view, it should not be eliminated, but lived with and worked through. There will always be free riders. And there will also be fanatics of civic virtue. Most of us will be caught in the middle, neither wishing to live in a society of privatization and selfishness nor in a society of total commitment.

1
Here we might note that John Stuart Mill attempted to resist this tendency and consequence of utilitarianism, but this does not call into the question the general point about the tension between these two faces of liberalism; it only raises the perplexing question about which side of this tension Mill was really on (Berlin, 1969b: 175–185; see also Gray, 1996, 2000).
2
For an interesting and broad ranging interpretation of Fourteenth Amendment jurisprudence, especially that portion of the text known as the Equal Protection Clause, see Fiss (1977). Beauchamp (1985) reads the Jacobson decision as a part of the republican and communitarian legal tradition of the United States that both stands at the origins of American public health law and embodies a way of thinking that has been eclipsed by narrower forms of liberalism and utilitarianism.
3
In the following discussion I have relied heavily on Schneewind (1998) and Wolff (1970).
4
By and large, the liberal tradition of moral individualism is best exemplified in recent times by the important work of philosopher John Rawls. He defines community narrowly as ‘an association of society whose unity rests on a comprehensive conception of the good.’ (1993: 146), and he adopts the view that community is reducible to an aggregation of individual preferences and beliefs. By defining community in terms of the function of beliefs about the good and the good life, Rawls goes on to argue that the concept of community has its proper place only in private life and should be excluded from the domain of politics, government, law, and public policy (Mulhall and Swift 1996: 191–222). Public relationships should be instrumental and advantageous, not communal and closely knit. Communities are dangerous in public life in a way that alliances for mutual advantage are not because communities will impose their conception of the good on dissenting individuals (and other communities) if they obtain the authority and coercive power to do so. Public morality, in contrast to religion and private morality, must be deontological, not teleological. That is to say, public morality and public policy must be based on justice, rights, and duties that are justified independent of the fact that adherence to these norms may promote the good or human flourishing.
5
Alternatively, some liberals, if not Mill himself, deploy this line of argument by reifying the state or society and treating it as a super-individual with interests that conflict with the interests of various individuals. Having set up a conflict between the individual and the state (or society) in this way, those who resolve the conflict on the side of the freedom and nonconformity of the individual are libertarians. Those who resolve this conflict by coming down on the side of public health paternalism or collective interests are clearly not libertarians, but then neither are they properly called communitarians, because nowhere behind these arguments is there a cogent or robust conception of community at work.
6
Note well that community and the life of civic virtue do not have some external state of affairs called the ‘common good’ (including a certain level of economic development or population health) as their instrumental objective. The common good is constituted by the proper institutionalization and functioning of citizenship and by the proper embedding of civic virtue in the lifeworld.
 The common good is not a notion that sets up a test for particular policies or particular actions to meet (as does the parallel concept of ‘the public interest’ in utilitarianism or liberal welfarism). It is not an outcome or an effect. However, the notion of the common good does provide a touchstone for judging and appraising a particular policy or decision. It appraises policy against criteria such as non-domination, non-arbitrariness, reasonable authority, mutual respect, reciprocity, and equity.
 Contemporary utilitarianism tends to define interests or ‘utilities’ abstractly across a population of individuals who have, as it were, only external or instrumental relationships to those interests. Utilitarianism also tends to ignore the distributional patterns in which these interests are fulfilled or their impact on discrete individual persons as such; it focuses instead on the net maximization of satisfaction or interest fulfillment in the aggregate. (Robbins, 1962; Walsh, 1996). By contrast, the judgments that make up communitarian policy appraisal are judgments of fittingness, character, and appropriateness. They must take into consideration the conditions of power and meaning that constitute the identity and interests of each person as a unique individual. They are at the political boundary between moral and aesthetic judgment. As such, they cannot be the only means of policy appraisal, in public health or in any other area. But neither should they be left out altogether (Nussbaum, 1995).
 Shared purposes or problems are not the same as individual purposes or problems that happen to overlap for large numbers of people. Of course, they do affect persons as individuals and as members of smaller groups, but they also affect the constitution of a ‘people,’ a population of individuals as a structured social whole. An aggregation of individuals becomes a people, a public, a political community when it is capable of recognizing common purposes and problems in this way; when it achieves a certain kind of political imagination (Anderson, 1991).

Earlier version of this paper have been presented at Columbia University and the University of Manchester. I am grateful to colleagues present on those occasions for their comments and questions. I am also grateful to Ronald Bayer and Amy Fairchild who read and provided written comments on the manuscript.

References

Anderson
B.
Imagined Communities: Reflections on the Origin and Spread of Nationalism
 , 
1991
2nd edn
New York
Verso
Bayer
R.
Fairchild
A. L.
The Genesis of Public Health Ethics
Bioethics
 , 
2004
, vol. 
18
 (pg. 
473
-
492
)
Beauchamp
D. E.
Beauchamp
D. E.
Steinbock
B.
Public Health as Social Justice
Inquiry, New Ethics of the Public's Health
 , 
1976
, vol. 
13
 
Oxford
Oxford University Press
(pg. 
1
-
14
)(pg. 
101
-
109
1999
Beauchamp
D. E.
Beauchamp
D. E.
Steinbock
B.
Community: The Neglected Tradition of Public Health
New Ethics of the Public's Health
 , 
1985
, vol. 
15
 
Oxford
Oxford University Press
(pg. 
28
-
36
Hastings Center Report, 1999
Beauchamp
D. E.
The Health of the Republic
 , 
1988
Philadelphia
Temple University Press
Berlin
I.
Two Concepts of Liberty
Four Essays on Liberty
 , 
1969
New York
Oxford
(pg. 
118
-
172
1958
Berlin
I.
John Stuart Mill and the Ends of Life
Four Essays on Liberty
 , 
1969
New York
Oxford
(pg. 
173
-
206
1959
Biggs
H. M.
Preventive Medicine in the City of New York
 , 
1897
New York
NY Health Department
Dworkin
R.
Taking Rights Seriously
 , 
1977
Cambridge, MA
Harvard University Press
Fiss
O.
Cohen
M.
Nagel
T.
Scanlon
T. M.
Groups and the Equal Protection Clause
Equality and Preferential Treatment
 , 
1977
Princeton
Princeton University Press
(pg. 
84
-
154
)
Gaylin
W.
Jennings
B.
The Perversion of Autonomy
 , 
2003
2nd edn
Washington, DC
Georgetown University Press
Gray
J.
Isaiah Berlin
 , 
1996
Princeton, NJ
Princeton University Press
Gray
J.
Two Faces of Liberalism
 , 
2000
New York
The New Press
Harré
R.
The Singular Self
 , 
1998
London
Sage Publications
Holland
S.
Public Health Ethics
 , 
2007
Cambridge
Polity Press
Leichter
H. M.
Free to Be Foolish: Politics and Health Promotion in the United States and Great Britain
 , 
1991
Princeton, NJ
Princeton University Press
Macpherson
C. B.
The Life and Times of Liberal Democracy
 , 
1977
Oxford
Oxford University Press
Mill
J. S.
On Liberty
 , 
1956
Indianapolis, IN
Bobbs Merrill
Mill
J. S.
Utilitarianism
 , 
1957
Indianapolis, IN
Bobbs Merrill
Mill
J. S.
Robson
John M.
Auguste Comte and Positivism
The Collected Works of John Stuart Mill.
 , 
1985
Toronto
University of Toronto Press
 
Vol. X, Essays on Ethics, Religion, and Society
Mulhall
S.
Swift
A.
Liberals and Communitarians
 , 
1996
2nd edn
Oxford
Blackwell
Nuffield Council on Bioethics
Public Health: Ethical Issues
 , 
2007
London
 
Nussbaum
M.
Poetic Justice
 , 
1995
Boston
Beacon Press
Plamenatz
J.
Wiener
Philip P.
Liberalism
Dictionary of the History of Ideas
 , 
1973
, vol. 
vol. 5
 
New York
Charles Scribner's Sons, III
(pg. 
36
-
61
)
Robbins
L.
An Essay on the Nature and Significance of Economic Science
 , 
1962
London
Macmillan
Schneewind
J. G.
The Invention of Autonomy: A History of Modern Moral Philosophy
 , 
1998
Cambridge
Cambridge University Press
Sen
A.
Williams
B.
Utilitarianism and Beyond
 , 
1982
Cambridge
Cambridge University Press
Taylor
C.
Philosophical Arguments
 , 
1995
Cambridge, MA
Harvard University Press
(pg. 
181
-
203
)
Walsh
V.
Rationality, Allocation, and Reproduction
 , 
1996
Oxford
Clarendon Press
Walzer
M.
Politics and Passion: Toward a More Egalitarian Liberalism
 , 
2004
New Haven, CT
Yale University Press
(pg. 
141
-
164
)
Wolff
R. P.
In Defence of Anarchism
 , 
1970
New York
Harper and Row