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John Stuart Mill and the Contagious Diseases Acts: Whose Law? Whose Liberty? Whose Greater Good?’

Published online by Cambridge University Press:  19 February 2016

Extract

Legal fictions are often used to lubricate the machinery of jurisprudence. One of these is the idea that laws created to restrict the liberty of some individuals or class of individuals in order to protect the public good are in effect outcomes of tradeoffs between abstract universals, namely liberty and the public good. A three way relationship is imagined in which law, liberty, and the public good are in creative tension. The role of the law in this three way tension is further imagined to be the mediator where it serves to calibrate this tension in ways that are also assumed to legitimate the intended outcomes in practice. In particular, where the outcome is the prevention of harm, then laws that curtail liberty must be seen not just as measures for the public good, but rather as necessitated by the potential effects of the very harm itself. The justification for this view is often traced back to the views of nineteenth century political philosopher John Stuart Mill, who famously expressed this in terms that have become known as the “harm principle”; specifically that “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.”

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Copyright © the American Society for Legal History, Inc. 2016 

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References

1. The literature on Mill's “harm principle” is way too vast to document here. The following several articles on various topics and from diverse positions illustrate the general acknowledgement of Mill in this respect, for example, Epstein, Richard A., “The Harm Principle–And How It Grew,The University of Toronto Law Journal 45 (1995): 369417CrossRefGoogle Scholar; Holtug, Nils, “The Harm Principle,Ethical Theory and Moral Practice 5 (2002): 357–89Google Scholar; Smith, Steven D., “Is the Harm Principle Illiberal,American Journal of Jurisprudence 51 (2006): 142CrossRefGoogle Scholar; Ripstein, Arthur, “Beyond the Harm Principle,Philosophy & Public Affairs 34 (2006): 215–45CrossRefGoogle Scholar; Parmet, Wendy E., “J.S. Mill and the American Law of Quarantine,Public Health Ethics 1 (2008): 210–22Google Scholar; and Tamburrini, Claudio, ‘What's Wrong With J.S. Mill's ‘Harm-to-Others’ Principle?Journal of the Philosophy of Sport 38 (2011): 126CrossRefGoogle Scholar.

2. John Stuart Mill, “On Liberty,” in The Collected Works of John Stuart Mill, ed. Jon M. Robson, 33 volumes (Toronto: Toronto University Press, 1963–91) XVIII:223. All citations to Mill's writings hereafter will be from Collected Works (hereafter CW).

3. Smith, F.B., “Ethics and Disease in the Late Nineteenth Century: The Contagious Diseases Acts,Historical Studies 15 (1971): 118–35CrossRefGoogle Scholar. There is a substantial literature on the CDAs and we cannot canvas it all here. For a representative sample see also Lee, Catherine, “Prostitution and Victorian Society Revisited: the Contagious Diseases Acts in Kent,Women's History Review 21 (2012): 301–16Google Scholar; Helen Self, Prostitution, Women, and Misuse of the Law: The Fallen Daughters of Eve (London: Frank Cass, 2003); Smith, F.B., “The Contagious Diseases Acts Reconsidered,The Society for the Social History of Medicine 3 (1990): 197215CrossRefGoogle Scholar; Frank Mort, Dangerous Sexualities: Medico-moral Politics in England Since 1830, 2nd ed. (London: Routledge, 1987); Caine, Barbara, “Feminism, Suffrage and the Nineteenth Century English Women's Movement,Women's Studies International Forum 5 (1982): 537–50CrossRefGoogle Scholar; Judith R. Walkowitz, Prostitution and Victorian Society: Women, Class and the State (Cambridge: Cambridge University Press, 1980); Hamilton, Margaret, “Opposition to the Contagious Diseases Acts,Albion: A Quarterly Journal Concerned with British Studies 10 (1978): 1427Google Scholar; and Walkowitz, Judith R. and Walkowitz, Daniel J., “‘We Are Not Beasts of the Field’: Prostitution and the Poor in Plymouth and Southampton under the Contagious Diseases Acts,Feminist Studies 1 (1973): 73106Google Scholar.

4. Michael St. J. Packe, The Life of John Stuart Mill (London: William Clowes and Sons, 1954).

5. See the references in note 3. The strength of this controversy varied geographically, on which see Lee, “Prostitution and Victorian Society Revisited.”

6. Mill, “The Contagious Diseases Acts,” in CW XXI:351.

7. Jeremy Waldron, “Mill on Liberty and the Contagious Diseases Acts,” in J S Mill's Political Thought: A Bicentennial Reassessment, ed. Nadia Urbinati and Alex Zakaras, (New York: Cambridge University Press, 2007), 16.

8. Later in the article we take up the issue of whether it is appropriate to describe Mill's ideas as “feminist,” given that the word only came to prominence toward the end of the nineteenth century, nearly two decades after Mill's death, primarily as a term of derision. See Moses, Claire Goldberg, “‘What's in a Name?’ On Writing the History of Feminism?Feminist Studies 38 (2012): 763Google Scholar; and Karen Offen, European Feminisms 1700–1950: A Political History (Stanford: Stanford University Press, 2000), 19.

9. This is the key reason that we have singled out Waldron's interpretation of Mill's testimony before the Royal Commission for discussion. Perhaps without intending to do so, Waldron's interpretation provides a paradigm example of how feminist ideas come to be marginalized. We would go further and suggest that Waldron's treatment of Mill's feminism (its contested status notwithstanding) signals not just that it is irrelevant for understanding Mill's engagement with the Royal Commission and the CDAs in general, but also that it is irrelevant for understanding his political philosophy.

10. See for example Gostin, Lawrence O. and Gostin, Keiran G., “A Broader Liberty: JS Mill, Paternalism, and the Public's Health,Public Health 123 (2009): 214–21Google Scholar, O'Neill Institute Papers. Paper 19. http://scholarship.law.georgetown.edu/ois_papers/19

11. Waldron, “Mill on Liberty,” 36–37.

12. Mill, “On Liberty,” in CW XVIII:224.

13. See note 3.

14. Hamilton, “Opposition,” 18.

15. Mort, Dangerous Sexualities, 68.

16. Walkowitz and Walkowitz, “‘We Are Not Beasts of the Field’,” 101–2, n. 5.

17. Howell, Philip, “Prostitution and Racialised Sexuality: The Regulation of Prostitution in Britain and the British Empire before the Contagious Diseases Acts,Environment and Planning D: Society and Space 18 (2000): 321–39CrossRefGoogle Scholar. See also Phillipa Levine, “Rough Usage: Prostitution, Law and the Social Historian,” in Rethinking Social History: English Society1570–1920 and Its Interpretation, ed. Adrian Wilson (Manchester: Manchester University Press), 267 who notes that as early as 1162, in the city of London there were regulations enacted to govern brothels and prostitutes.

18. Howell, “Prostitution and Racialised Sexuality,” 326–27.

19. Ibid., 326; Philipa Levine, Prostitution, Race and Politics: Policing Venereal Disease in the British Empire (New York: Routledge, 2003), 38; and Warren, James Francis, “Prostitution and the Politics of Venereal Disease: Singapore, 1870–98,Journal of Southeast Asian Studies 21 (1990): 360–83CrossRefGoogle Scholar.

20. Walkowitz and Walkowitz, “‘We Are Not Beasts of the Field’,” 74.

21. Lawson, Robert, “The Operation of the Contagious Diseases Acts among the Troops in the United Kingdom, and Men of the Royal Navy on the Home Station, from their Introduction in 1864 to their Ultimate Repeal in 1884,Journal of the Royal Statistical Society 54 (1891): 3169Google Scholar.

22. Sandra S. Holton, “Women and the Vote,” in Women's History: Britain 1850–1945, An Introduction, ed. June Purvis (Bristol: UCL Press, 1995), 239.

23. Lee, “Prostitution and Victorian Society Revisited,” 303.

24. Hall, Lesley, “Hauling Down the Double Standard: Feminism, Social Purity and Sexual Science in Late Nineteenth-Century Britain,Gender & History 16 (2004): 44CrossRefGoogle Scholar.

25. Ibid.

26. Smith, “The Contagious Diseases Acts Reconsidered,” 199.

27. Waldron, “Mill on Liberty,” 39.

28. Of the scholarship mentioned in note 3, only three works discuss Mill and the CDAs. Notably, these three were written from a feminist perspective. A relatively recent study of Mill's life and political activism (Bruce L. Kinzer, J.S. Mill Revisited: Biographical and Political Explorations [New York: Palgrave Macmillan, 2007]) makes no mention of Mill's objections to the CDAs (nor of Mill's attempt to secure voting rights for women), despite the alleged focus on Mill's engagement with significant political issues of his day.

29. Waldron, “Mill on Liberty,” 19.

30. Mill, “The Contagious Diseases Acts,” in CW_XXI:351.

31. Ibid., 352.

32. Mill, “On Liberty,” in CW_XVIII:294–95.

33. Mill, “The Contagious Diseases Acts,” in CW_XXI:354.

34. Ibid., 354.

35. Ibid., 354. Mill's emphasis.

36. Ibid., 363.

37. Ibid., 362–63.

38. Ibid., 352.

39. Ibid., 353.

40. Linda Zerilli, Signifying Woman: Culture and Chaos in Rousseau, Burke, and Mill, (Ithaca, NY: Cornell University Press, 1994), 130.

41. Ibid., 133.

42. Ibid., 131.

43. John Stuart Mill, “On Marriage (1832–33),” in CW_XXI:39–40. Mill expanded on his companionate view of marriage in “The Subjection of Women” in CW_XXI:278, 294–95, 336.

44. Mill, “The Subjection,” 285, 288. See also Mill, “On Liberty,” 278; Mill, “A System of Logic: Ratiocinative and Inductive,” in CW_VIII:859.

45. Mill, “The Contagious Diseases Acts,” 352.

46. Ibid., 360, 363, 365–67, 371.

47. For example, Waldron, “Mill on Liberty”; and Zerilli, Signifying Woman.

48. Mill, “The Contagious Diseases Acts,” 356, also 354, 366.

49. Ibid., 366.

50. Ibid., 355.

51. Waldron, “Mill on Liberty,” 38.

52. Ibid., 41, n. 62.

53. Ibid., 39.

54. Ibid., 41.

55. Ibid., 32.

56. Ibid., 16.

57. As Mill himself affirmed, see J. S. Mill, “Autobiography,” in CW_I:249 ff.; also “On Liberty,” 215. See also Alice Rossi, “Sentiment and Intellect: The Story of John Stuart Mill and Harriet Taylor Mill,” in Essays on Sex Equality: John Stuart Mill and Harriet Taylor, ed. Alice S. Rossi (Chicago: University of Chicago Press, 1970).

58. Waldron, “Mill on Liberty,” 13.

59. See, for example, Alexander Bain, John Stuart Mill: A Criticism with Personal Recollections, (London: Longmans, Green & Co., 1882); Friedrich Hayek, John Stuart Mill and Harriet Taylor: their Friendship and Subsequent Marriage (Chicago: Chicago University Press, 1951); Gertrude Himmelfarb, On Liberty and Liberalism: The Case of John Stuart Mill (New York: Alfred Knopf, 1974); and H.O. Pappe, John Stuart Mill and the Harriet Taylor Myth (Melbourne: Melbourne University Press, 1960).

60. There is a vast literature debating the nature of Mill's feminism. For a very small sample, mostly critical and from a variety of perspectives, see Annas, Julia, “Mill and The Subjection of Women,Philosophy 52 (1977): 179–94Google Scholar; Susan Moller Okin, Women in Western Political Thought (Princeton: Princeton University Press, 1979); Goldstein, Leslie, “Mill, Marx, and Women's Liberation,Journal of the History of Philosophy 18 (1980): 319Google Scholar; Zillah Eisenstein, The Radical future of Liberal Feminism (New York: Longman, 1981); Ring, Jennifer, “Mill's The Subjection of Women: The Methodological Limits of Liberal Feminism,The Review of Politics 47 (1985): 2744Google Scholar; Catherine MacKinnon, Feminism Unmodified: Discourses on Life and Law (Cambridge: Harvard University Press, 1987); Gail Tulloch, Mill and Sexual Equality (Hertfordshire: Harvester Wheatsheaf, 1989); Shanley, Mary Lydon, “Marital Slavery and Friendship: John Stuart Mill's The Subjection of Women,Political Theory 9 (1981): 229–47Google Scholar; Christine Di Stefano, Configurations of Masculinity: A Feminist Perspective on Modern Political Theory (Ithaca: Cornell University Press, 1991); Moira Gatens, Feminism and Philosophy: Perspectives on Difference (Bloomington: Indiana University Press, 1991); Burgess-Jackson, Keith, “John Stuart Mill, Radical Feminist,Social Theory and Practice 21 (1995): 369–96Google Scholar; Smith, Elizabeth S., “John Stuart Mill's The Subjection of Women: A Re-Examination,Polity XXXIV (2001): 181203Google Scholar; Stafford, William, “Is Mill's ‘Liberal’ Feminism ‘Masculinist’,Journal of Political Ideologies 9 (2004): 159–79Google Scholar; Jose, Jim, “No More Like Pallas Athena: Displacing Patrilineal Accounts of Modern Feminist Political Theory,Hypatia: A Journal of Feminist Philosophy 19 (2004), 122Google Scholar; and Zerilli, Signifying Woman.

61. Jean Grimshaw, Feminist Philosophers: Women's Perspectives on Philosophical Traditions (Hempel Hempstead: Harvester Wheatsheaf, 1986), 21.

62. Moses, “What's in a Name?” 762 ff; Offen, European Feminisms, 19–26; Virginia Sapiro, A Vindication of Political Virtue: The Political Theory of Mary Wollstonecraft (Chicago: The University of Chicago Press, 1992), 258 ff; Cott, Nancy, “What's in a Name? The Limits of ‘Social Feminism’; or, Expanding the Vocabulary of Women's History,Journal of American History 76 (1989): 809–29Google Scholar; and Joan Kelly, Women, History and Theory: The Essays of Joan Kelly (Chicago: University of Chicago Press, 1984), 65 ff.

63. For some discussion of the social and sexual subordination of women see, for example, Maeve E. Doggett, Marriage, Wife-beating and the Law in Victorian England: “sub virga viri” (London: Weidenfeld & Nicolson, 1992); Finn, Margot, “Women, Consumption and Coverture in England, c. 1760–1860,The Historical Journal 39 (1996): 703–22CrossRefGoogle Scholar; Siegel, Reva B., “‘Rule of Love’: Wife Beating as Prerogative and Privacy,The Yale Law Journal 105 (1998): 2117–207Google Scholar; and Hasday, Jill Elaine, “Contest and Consent: A Legal History of Marital Rape,California Law Review 88 (2000): 1372–505Google Scholar. If the general condition of women in nineteenth century England was lamentable, then that of prostitutes was much worse, because at that time “prostitutes, like animals, had no legal personalities” (Smith, “Ethics and Disease,” 119).

64. Mill, “The Subjection,” 261.

65. Ibid., 261.

66. Ibid., 279.

67. Ibid., 266.

68. Ibid., 313.

69. Ibid., 269.

70. Ibid., 312.

71. Ibid., 266.

72. Ibid., 271.

73. Ibid.

74. Ibid., 269.

75. Mill, “Periodical Literature: Edinburgh Review,” in CW_I:311.

76. Mill, “Letter to William John Fox,” in CW_XII:184. Mill's emphasis.

77. Mill, “A System of Logic,” 837, n. 51. The third edition appeared in 1851, and although the citation here is to the eighth edition in the Collected Works, the footnote remained unchanged in all subsequent editions.

78. Mill, “Principles of Political Economy,” in CW_II:209.

79. Mill, “Principles of Political Economy,” in CW_III:765).

80. Mill, “Letter to Henry Chapman,” in CW_XV:557.

81. Mill, “Utilitarianism,” in CW_X:259.

82. Mill, “Letter to Henry Chapman,” 558.

83. Rossi, “Sentiment and Intellect”; Jo Ellen Jacobs, “Introduction,” in The Complete Works of Harriet Taylor Mill (Bloomington: Indiana University Press, 1998).

84. Zerilli, Signifying Woman, 131. Given the close nature of Mill and Harriet Taylor's relationship, and that Taylor's first husband (John Taylor) allegedly contracted syphilis early in their marriage, it is highly unlikely that Mill would have regarded men as merely innocent recipients of such diseases. See Jacobs, “Introduction,” xxxi–xxxii.

85. Zerilli, Signifying Woman, 127.

86. Maria Morales, Perfect Equality: John Stuart Mill on Well-constituted Communities, (Lanham: Rowman and Littlefield, 1996), 109; and Zivi, Karen, “Cultivating Character: John Stuart Mill and the Subject of Rights,American Journal of Political Science 50 (2006): 4961CrossRefGoogle Scholar.

87. Zivi, “Cultivating Character,” 50. See also Morales, Perfect Equality.

88. The editorial comment prefacing the online text of the single edition of these two works points out that Mill was somewhat reluctant to publish The Subjection of Women “during his lifetime because he feared the condemnation of his peers for daring to apply the general notions of individual liberty which he had clearly spelled out in On Liberty to the particular case of women. So he withheld publication until just before his death. It was left to an enterprising publisher after the author's death to recognize the connection between the two works and to combine them in a new edition.” See John Stuart Mill, On Liberty and The Subjection of Women, New York, 1879. http://oll.libertyfund.org/title/347. Accessed 25 January 2013.

89. For example, in Singapore, arguments over the merits of the CDAs were ongoing well into the 1890s, even though they had been repealed there in 1888. See for example, Galloway, David G., “Essay on the Contagious Diseases Acts,Proceedings of the Straits Philosophical Society 1 (1893): 7180Google Scholar. See also Warren, “Prostitution and the Politics of Venereal Disease.”

90. Mill, “On Liberty,” 24.

91. Ibid.

92. There is a vast literature critiquing Mill's relationship with English colonialism, not to mention that of the tradition of liberalism generally. For some typical critiques, see Bhikhu Parekh, “Liberalism and Colonialism: a Critique of Locke and Mill,” in The Decolonization of Imagination: Culture, Knowledge and Power, ed. Jan Nederveen Pieterse and Bhikhu Parekh (London: Zed Books, 1995); Uday Singh Mehta, Liberalism and Empire: A Study in Nineteenth-Century British Liberal Thought (Chicago: University of Chicago Press, 1999); Eddy M. Souffrant, Formal Transgression: J.S. Mill's Philosophy of International Affairs (Lanham: Rowman and Littlefield, 2000); Bruce Baum, Rereading Power and Freedom in J. S. Mill (Toronto: University of Toronto Press, 2000); Dossa, Shiraz, “Liberal Imperialism? Natives, Muslims, and Others,Political Theory 30 (2002): 738–45Google Scholar; and Jennifer Pitts, A Turn to Empire: The Rise of Imperial Liberalism in Britain and France (Princeton: Princeton University Press, 2005).

93. Kohn, Margaret and O'Neill, Daniel I., “A Tale of Two Indias: Burke and Mill on Empire and Slavery in the West Indies and America,Political Theory 34 (2006): 221CrossRefGoogle Scholar.

94. Mill, “Considerations on Representative Government,” in CW_XIX:416–17.

95. Tunick, Mark, “Tolerant Imperialism: John Stuart Mill's Defence of British Rule in India,The Review of Politics 68 (2006): 599Google Scholar.

96. Hindess, Barry, “Not at Home in Empire,Social Identities: Journal for the Study of Race, Nation and Culture 7 (2001): 369Google Scholar.

97. How this bias might be characterized and assessed is a matter of some debate (especially as it also impacts on how Mill's political philosophy relates imperialism and colonial rule). For some discussion of Mill and “civilizational hierarchies,” see Kohn and O'Neill, “A Tale of Two Indias,” 210–11.

98. See, for example, Ballhatchet, Keith A., “John Stuart Mill and Indian Education,Cambridge Historical Journal 11 (1954): 228Google Scholar; Harris, Abram L., “John Stuart Mill: Servant of the East India Company,Canadian Journal of Economics and Political Science 30 (1964): 185202Google Scholar; George D. Bearce, British Attitudes Toward India 1784–1858 (Westport: Greenwood, 1982); Mehta, Liberalism and Empire, 195–96; and Dossa, “Liberal Imperialism?” 739 and 742.

99. This is not to deny the various racist cross-currents within liberal thought (on which see, for example, Hindess, “Not at Home”; Charles Mills, The Racial Contract [Ithaca, Cornell University Press, 1999]; and Dominic Losurdo, Liberalism: A Counter-History, trans. G. Elliott [London: Verso Books, 2011]), but rather to acknowledge that Mill himself was well known for his hostility to racism.

100. Mill, “On the Negro Question,” in CW_XXI:93.

101. Ibid., 87. For present purposes, our discussion abstracts from the issue of whether this developmental argument still mires Mill as deeply within the imperial mindset as his more racist compatriots. As Kohn and O'Neill have argued, Mill clearly accepted and used a “concept of civilizational hierarchy” in defending the colonizer's right to rule the colonized (Kohn and O'Neill, “A Tale of Two Indias,” 206; see also Hindess, “Not at Home”), although he did not necessarily subscribe to the potentially racial hierarchies that others correlated with it to justify such rule.

102. Kohn and O'Neill, “A Tale of Two Indias,” 212.

103. Mill, “Considerations,” 419.

104. Kohn and O'Neill, “A Tale of Two Indias,” 218–19.

105. Mill, “On the Negro Question,” 87.

106. Kohn and O'Neill, “A Tale of Two Indias,” 220–21.

107. Karuna Mantena, “The Crisis of Liberal Imperialism,” in Victorian Visions of Global Order: Empire and International Relations in Nineteenth Century Political Thought, ed. Duncan Bell (Cambridge: Cambridge University Press, 2007), 122.

108. Mill, “The Subjection,” 276.

109. For his father's view see James Mill, A History of British India (London: Baldwin, Craddock, and Joy, 1817). A variation on this trope was also expressed by utopian socialist Charles Fourier (see his Charles Fourier: The Theory of the Four Movements, ed. Gareth Stedman Jones and Ian Patterson, trans. Ian Patterson (Cambridge: Cambridge University Press, 1996) and both Karl Marx and Friedrich Engels, separately and together (see Karl Marx, “Economic and Philosophical Manuscripts of 1844,” in Karl Marx: Early Writings, Introduced by Lucio Colletti, trans. Rodney Livingstone and Gregory Benton [New York: Vintage Books, 1975]; Karl Marx and Friedrich Engels, The Holy Family, or Critique of Critical Criticism Against Bruno Bauer and Company, trans. Richard Dixon & Clemens Dutt [Moscow: Progress Publishers, 1975]; and Friedrich Engels, Anti-Duhring: Herr Eugen Duhring's Revolution in Science, trans. Emile Burns [Moscow: Progress Publishers, 1975]). For some critical analysis from a feminist perspective of their use of this trope see Jose, “No More Like Pallas Athena.” For an argument about John Stuart Mill's debt to his father, not just for this trope, but for his feminism in general, see Ball, Terence, “Utilitarianism, Feminism, and the Franchise: James Mill and his Critics,History of Political Thought 1 (1980): 91115Google Scholar; against this, see Jose, Jim, “Contesting Patrilineal Descent in Political Theory: James Mill and Nineteenth-Century Feminism,Hypatia 15 (2000): 151–74CrossRefGoogle Scholar.

110. Tunick, “Tolerant Imperialism,” 599.

111. Here we would add that the colonies themselves figured in a sexual economy benefitting administrators, military personnel, and travellers alike. Rules of conduct that might have applied at home often were relaxed or ignored within the colonies. See, for example, the varied interpretations of Keith Ballhatchet, Race, Sex, and Class under the Raj: Imperial Attitudes and Policies and their Critics, 1793–1905 (London: Weidenfield and Nicholson, 1980); Ronald Hyam, Empire and Sexuality: The British Experience (Manchester: Manchester University Press, 1991); and Anne McClintock, Imperial Leather: Race, Gender and Sexuality in the Colonial Contest (New York: Routledge, 1995).

112. Mill, “Civilization,” in CW XVIII:122.

113. We thank one of our anonymous reviewers for drawing our attention to this point.

114. Jose, Jim, “‘Like Prussic Acid in a Bottle of Medicine’: Liberal Principles and Colonial Rule,Postcolonial Studies 13 (2010): 199214CrossRefGoogle Scholar.

115. It is not without some irony that we note that this very phrase, “Hobson's choice,” was used by Mill when commenting on why many men of his own time seemed determined to deny equal rights to women. He noted that in the absence of meaningful alternatives, if men insisted on the “law of marriage” being a “law of despotism,” then women were left with “only Hobson's choice.” Hence Mill noted that such logic entailed that it was “wrong to bring women up with any acquirements but those of an odalisque or of a domestic servant.” See Mill, “The Subjection,” 282.

116. Zerilli, Signifying Woman, 131.