John Stuart Mill versus the Supreme Court of Canada

One of the great intellectual dustups among the intelligentsia in late Victorian English society was the controversy about the nature of the state’s legitimate power of compulsion.

In his classic On Liberty, John Stuart Mill wrote, “The only purpose for which power can be rightfully exercised over another member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.” Among the most prominent opponents of this “neo-utilitarian” formulation was Sir James Fitz-James Stephen, who, appealing to old-school Benthamite utilitarianism, disagreed with Mill’s proposition that moral harm is not properly included in the category of harm to others. Stephen, whose view of the purpose of criminal law is aptly captured in his aphorism “the criminal law stands to the passion for revenge in much the same relation as marriage to the sexual appetite,” argued in his counterblast to On...