There is a Faustian trope in the Blues tradition in which a sinister, phantom train rattles through eternal night transporting souls to the afterlife. In a version penned by Chris de Burgh, called Spanish Train (1975), God and Satan are playing poker in a carriage, gambling with souls. Naturally, Satan tends to cheat and according to the final stanza:
Far away, in some recess,
The Lord and the Devil are now playing Chess.
The Devil still cheats and wins more souls,
as for the Lord – he’s just doing his best.
The government of the day in South Africa, not famous for its tolerance, tried to ban Spanish Train for blasphemy. The attempt failed, sales soared and the song enjoyed an extended popularity, even as it faded from the airwaves of more tolerant nations. This apparent relationship between censorship and popularity is interesting but orthogonal here. What is relevant is the paternalistic attempt to establish a limit on toleration. Mill would certainly have defended the right of listeners to hear Chris de Burgh’s lyrical expression. For him, the only purpose for which power can be rightfully exercised over any mature, rational member of a civilized community is to prevent harm to others. But in On Liberty he cites a single exception to this ‘liberty principle’: that an individual should not be permitted to choose to become a slave.
Perhaps this reasoning can be extended to justify a far-reaching paternalism. Perhaps it is consistent with the liberty principle that a serious, voluntary diminution of a person’s liberty that is very hard to reverse may be justly prohibited by society (Archard, 1990). The reaction of some religions to apostasy offers a dark glass through which to examine this matter. However, it is time to take Aristotle’s advice and define terms.
Ronald Dworkin defines paternalism as, roughly, ‘the interference with a person’s liberty of action justified by reasons referring exclusively to the welfare, good, happiness, needs, interests or values of the person being coerced’ (in Warburton, et.al. p.343). Consider, for instance, laws requiring the wearing of seatbelts in automobiles. These seem to concern, exclusively, the coercion of the individual benefitting from the coercion. But it’s not that simple. Car manufacturers obligated to fit the seatbelt are also coerced. Also, there are plenty of non-paternalistic arguments for seatbelts: including protecting the interests of paramedics forced to deal with a mangled aftermath, or those of the public who pay for medical care through taxation.
Mill argues against paternalism vehemently, but he asserts a single exception:
In this and most other civilized countries ... an arrangement by which a person should sell himself, or allow himself to be sold, as a slave, would be null and void; neither enforced by law nor by opinion...
...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. The principle of freedom cannot require that he should be free not to be free. It is not freedom to be allowed to alienate his freedom. (Mill, p.113, 114)
Dworkin notes that ‘the main consideration for not allowing such a contract is the need to preserve the liberty of the person to make future choices’ (op.cit. p.350). David Archard uses the term ‘self-abrogating’, the diminution of rational self-interest, to describe the self-defeating nature of this behaviour.
p is an instance of a ... self-abrogating exercise of y by x if x’s doing p brings it about that x cannot subsequently exercise y. (Archard, p.459)
Because y, freedom, is valuable the purpose of proscribing p, slavery, is to guarantee the exercise of y. The manner of this proscription will be examined shortly. Initially, attention will turn to apostasy.
An apostate is someone who openly rejects previously held religious views. Some religious communities mandate penalties for apostasy. Examples:
First: Jehovah’s Witnesses, a society asserting Biblical inerrancy, ‘disfellow’ apostates, whereby the community shun offending individuals. The faithful are encouraged to cooperate ‘with the Scriptural arrangement to disfellowship and shun unrepentant wrongdoers’ (Kingdom Ministry, 2002, p.3). This practise can, if the apostate is ‘of age’, include the severing of consanguine relations: ‘there can be a departing and breaking of family ties in a physical way, because the spiritual ties have already snapped’ (Watchtower, 1952, p.703).
Second: many Muslims consider the six authorised collections of hadith to be equal in canonical value to the Koran. In one collection, compiled by Bukhari (810-870), the punishment for apostasy is explicit: ‘Whoever changed his Islamic religion, then kill him’ (Sahih al-Bukhari, 9:84:57). I do not claim here that this is openly practised in the West. However, it has been suggested that some Muslims accept the justice of the mandate. In any case, it seems plausible that its expression could cause at least a minority of potential apostates to think twice before renouncing Islam.
The first example seems free from interference in accordance with the liberty principle. Jehovah’s Witnesses cannot be coerced into socialising with apostates. The objection that disfellowshipping harms the communal interests of the ostracised individual can be met with the rejoinder that social interaction with an apostate harms the spiritual well-being of the remaining faithful. Of course, the trapdoor problem of defining harm creaks beneath our feet. But that conundrum lies beyond the compass of this essay so we’ll note it and move on. In any case, the Witness apostate is free to seek alternative company. Disfellowshipping seems calculated to impose the community’s ‘own ideas and practises as rules of conduct on those who dissent from them’ (Mill, p.9). This is antithetical to Mill’s aims in On Liberty, and anyone with an interest in human flourishing should despise the practice, but the exception to the liberty principle is inappropriate here.
The second example is more complex. On the one hand Mill’s defence of freedom of thought and discussion supports the expression of ideas antithetical to his own axiomatically. One might simply declare that the liberty principle articulates clearly the extent to which combustible religious activity should be interfered with: that the harm, the killing should be prevented; or, an opinion that apostates must be killed may justly incur punishment when delivered orally to an excited, religious mob assembled before the house of an apostate – problem solved. But perhaps this fails to acknowledge a liberal paradox that manifests sharply in multicultural societies: that of the need to tolerate alternative opinions and lifestyles, including those that fundamentally reject the notion of toleration itself. If teaching that apostates should be killed prevents disillusioned Muslims from renouncing their religion, then perhaps Mill’s concession can be extended to restrict the membership of this acerbic form of Islam.
This line of reasoning implies that fundamentalist Islam is in some way analogous to slavery. An argument from analogy is only as strong as its relevant similarities. In this case, the ‘contract’ is made between the individual and a celestial master. However, aside from a miserable afterlife, any retribution for apostasy is likely to be administered by other human beings. In any case, Mill’s reasoning might be extended to allow a less controversial claim: that choosing fundamentalist Islam proscribes any future liberty to alter that decision. Therefore, as it is not freedom to be allowed to alienate freedom, paternalistic intervention is justified.
Imagine two individuals, Sophie and Paul. Both freely convert to Islam. Sophie lives a long and flourishing life without ever finding cause to reject her faith. For her the penalty for apostasy is never an issue. On the other hand, Paul reads a book by Richard Dawkins and is suddenly fraught with doubt. But, fearful of retribution, he is forced to maintain the illusion of faith through prayer, study and the careful maintenance of a lifestyle acceptable to the watchful community. He is, in a sense, no longer free. To prevent Paul’s situation, society could impose penalties for those choosing religions that mandate death for apostates. However, to be consistent, Sophie, who flourished, would have to be punished also.
Archard interprets Mill’s reasoning to suggest only that a slavery contract would not be legally enforced, ‘that society should refuse to recognize such a contract, not penalizing its making but being unprepared to prevent its breaking’ (p.455). Without sanctions an unhappy slave is, in theory, free to walk away, thus negating the whole concept. Therefore, slavery is proscribed in a ‘weak way’.
This reasoning seems sufficient for Paul’s situation. Justifying restricting his original choice in accordance with the liberty principle would require, necessarily, but not necessarily sufficiently, harm to others, or involuntariness such as coercion or mental incapacity. In the absence of these conditions, Mill would still proscribe slavery, albeit in a weak way. The notion that apostates should be killed is similarly proscribed. Consistent with the harm condition of the liberty principle, society is obliged to offer Paul protection. The liberty principle, in theory, establishes the conditions whereby Paul can, if he has the courage, seek an alternative lifestyle.
The freedom to assert that apostasy is punishable by death is protected, under most conditions, by the liberty principle. Liberal societies are obliged to combat religious harm with cold, unwavering determination. But, without the full freedom and collision of opinions, including those antithetical to freedom itself, toleration becomes an empty article of faith. Isaiah Berlin once wondered if unfettered acerbic opinions are, always, in liberal societies, stopped in time, or refuted in the end (in Warburton, et.al. p.338). They may not be. But Mill’s single concession does not seem to justify extending his reasoning to define the limits of toleration beyond those explicit in the liberty principle. Like the ‘Lord’ in the Spanish Train, those with an interest in freedom are obliged to play by the rules, even if those with an alternative view tend to cheat and win more souls.
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Watchtower 52 11/15 (1952), Questions from Readers, Watchtower Library 2003 v.6 [CD-ROM], Watchtower Tract and Bible Society of Pennsylvania.
 Although, Ayaan Hirsi Ali is an apostate whose round-the-clock protection illustrates the extent to which religious threats are taken seriously. Death threats were issued following the release of a film, critical of Islam, called Submission (2004), for which she wrote the screenplay. Threats intensified in 2006, following publication of her autobiographical book, Infidel. The disproportionate degree of threat, compared with that experienced by non-ex-Muslim writers critical of Islam, such as Sam Harris (The End of Faith, 2005) and Christopher Hitchens (God is not Great, 2007), could be related to her apostasy. This is plausible, particularly when one considers the violent reaction of some Muslims to Salman Rushdie’s The Satanic Verses (1989): Rushdie was also raised a Muslim.
 A poll of 1000 Muslims, aged between 16 and 24, conducted by the Policy Exchange think-tank in 2007, found that 36 per cent believe those who convert to another faith should be punished by death (see The Guardian, [online]). This data is often cited, but some have questioned its reliability (see Milne, S. The Guardian, Comment is Free, [online). I use the Policy Exchange conclusions hypothetically.
 The Infallibility, Partly True, Dead Dogma and Link With Action arguments (Mill, On Liberty, Chapter II).
 Koran 3:86-91
 I use ‘contract’ here to mean either a formal or informal agreement.
 Interestingly, it seems consistent with the liberty principle to prohibit children from entering religions asserting death for apostasy.