Critically examine: “In the first place, it is mostly considered unjust to deprive anyone of his personal liberty, his property or any other thing which belongs to him by law…………………….”. (John Stuart Mill) (1999)
The sentence opens John Stuart Mill‘s catalogue of what people call unjust, in chapter V (“On the Connexion between Justice and Utility”) of Utilitarianism (Fraser’s Magazine, 1861; book, 1863). It equates justice with respecting legal rights. Mill reports it as common opinion and qualifies it at once: sound as a minimum of justice, inadequate as its criterion.
Place in Mill’s Argument
- Answering the charge that utility cannot explain justice, Mill lists six modes of injustice: violating legal rights or moral rights, denying desert, breaking faith, partiality and inequality, and asks what unites them.
- The first mode gives justice “a perfectly definite sense”: to respect legal rights is just, to violate them unjust.
- The second limits it: a legal right may be one that “ought not to have belonged to him”, since the law may be bad. Hence “law… is not the ultimate criterion of justice”.
- For Mill, “to have a right… is to have something which society ought to defend me in the possession of” because of general utility, above all security, “the most vital of all interests”, echoing Jeremy Bentham‘s property as a basis of expectation.
The Strength of the Claim
- It captures the rule of law: liberty and holdings must not hang on a ruler’s whim. India’s Constitution uses the same grammar. Article 21 bars deprivation of personal liberty except according to procedure established by law, and Article 300A bars deprivation of property save by authority of law. Kolkata Municipal Corporation v. Bimal Kumar Shah (2024) read seven procedural sub-rights into Article 300A.
Critical Examination
- Legality is not justice. A. K. Gopalan (1950) accepted any enacted law; Maneka Gandhi (1978) demanded procedure that is just, fair and reasonable: Mill’s move from first mode to second.
- Whose law? Karl Marx (On the Jewish Question, 1843) called the right of property the right of self-interest. Equal protection secures unequal holdings; Anatole France mocked a law that in its majestic equality forbids rich and poor alike to sleep under bridges.
- Exclusion. In Mill’s England a wife’s property belonged by law to her husband, a wrong he himself attacked in The Subjection of Women (1869). India’s Forest Rights Act (2006) admits a “historical injustice”: colonial and later forest law left forest dwellers’ ancestral land unrecognised.
- Rights as utilities. Resting rights on utility, Mill allows one to steal, or take by force food or medicine to save a life. John Rawls (A Theory of Justice, 1971) objects that utilitarianism does not take seriously the distinction between persons, leaving basic liberties hostage to aggregate gain.
- From the right. Robert Nozick (Anarchy, State, and Utopia, 1974) makes just holdings the whole of justice, denying Mill’s premise (Principles of Political Economy, 1848) that distribution is “a matter of human institution”.
Conclusion
Mill’s sentence states the floor of justice: no liberty or property taken outside the law. He saw that law can be unjust; his appeal to utility leaves rights open to calculation. Rawls’s priority of basic liberties is the better standard, and close to where Indian law travelled from Gopalan to Maneka Gandhi.