Phl 347
Lectures 15 & 16: Liberty and the Harm Principle

Liberty and "the Harm Principle"

"The only purpose for which power can be rightly exercised over any member of a civilized community against his will, is to prevent harm to others."

John Stuart Mill, On Liberty.

The meaning of "harm"

Some examples of paternalistic legislation

Motorcycle helmel laws, seat belt laws, laws forbidding swimming without a lifeguard, prohibition of recreational drugs, laws forbidding gambling, laws regulating sexual conduct between consenting adults in private (including prostitution and sadism), prohibitions of gambling, usury laws, laws against duelling, murder statutes (insofar as consent of victim is no defense), laws prohibiting the use of drugs not approved by the FDA, laws prohibiting the sale of uninspected meat (even when customer is forewarned), mandatory Social Security contributions, compulsory school attendance.

Ulysses and the sirens

Mill's Exceptions

Children vs. Adults

Stephen's Criticisms of Mill

Purposes of punishment?

Stephen also argues that the criminal law exists, not only to deter crimes that are dangerous to society, but "also for the sake of gratifying the feelings of hatred -- call it revenge, resentment, or what you will -- which the contemplation of such conduct excites in healthily constituted minds. " (LEF, p. 318) He contends that laws against crimes of force and fraud exist, not only for the protection of potential victims, but also because these crimes are considered immoral.

We saw, in our study of mens rea and of the insanity defense, that there does seem to be an irreducibly moral dimension to criminal punishment: we shrink from severe punishment except in cases where the lawbreaker is morally blameworthy. This supports Stephen's argument.

Social Sanctions and the Law

Mill's harm principle applies, not only to the power of the state, but also to the actions of civil society. It is worng for the state to impinge upon individual liberty through the criminal law, but it is equally wrong for society to do so by imposing social sanctions (shunning, public denunciation, strong expressions of disapproval or loathing).

Stephen argued that all moral codes depend for their very survival on the use of such social sanctions. Mill's Harm Principle would mean the effective end of all morality.

Conversely, Stephen argued, if society is permitted to punish immoral behavior by means of social sanctions, how can it be forbidden from using the criminal law, where appropriate. Stephen conceded that the criminal law is a crude instrument, and that it should only rarely be used against immoral behavior that is not directly harmful to others.

The Definition of Harm

Stephen: "It is surely a simple matter of fact that every human creature is deeply interested, not only in the conduct, but in the thoughts, feelings and opinions of millions of persons who stand in no assignable relation to him than that of being his fellow-creatures."

Moralistic vs. Non-Moralistic Paternalism

Can the State be paternalistic without being moralistic? Can it reject Mill's Harm Principle to the extent of prohibiting acts that are harmful to the lawbreaker, but respect Mill's principle to the extent of never prohibiting any act simply on the grounds that it is immoral?

This distinction can be a difficult one to maintain, since almost all moralistic legislation can be defended on purely paternalistic grounds.

The philosophical tradition of "eudaemonism", stretching from Socrates, Plato and Aristotle, through Thomas Aquinas and into the modern period, has held that virtue is its own reward, vice its own punishment. To act immorally is to harm oneself, by damaging one's moral character. Hence, immoral acts could be prohibited on the grounds of protecting immoral people from themselves, and not on the grounds that immoral people are to be hated and injured.

The distinction between moralistic and non-moralistic paternalism is possible on by distinguishing between harms that are scientifically demonstrable to everyone, and those that depend on adopting some controversial philosophical or theological theory. To reject moralism is to require that the State be neutral on all controversial propositions.

Four Varieties of Neutralism

1. Preference-based Utilitarian theory. Maximize the satisfaction of all preferences, without partiality or discrimination.

2. Dworkin's equal respect theory. Maximize the satisfaction of all preferences, except for "external" preferences. An external preference is a preference that one person has for how another person should lead his life.

3. Property-based Libertarianism. State must respect neutrally defined boundaries of property. Each person is free to do whatever he pleases within those boundaries.

4. Procedural Neutralism. The state must justify each of its prohibitions without appealing to controversial facts or values.

Utilitarian Moralism

Utilitarianism can justify paternalistic, and even moralistic, legislation, so long as doing so satisfies the strong preferences of a large enough group.

Dworking avoids this result by excluding external preferences -- but can he justify doing so, except as an ad hoc measure, designed to avoid paternalism and moralism? Isn't Dworkin being non-neutral, in effect judging that external preferences are bad or improper?

Libertarianism and Paternalism

Libertarianism would exclude all forms of paternalism, whether moralistic or not. It would be at least as sweeping as Mill's Harm Principle. Moderate libertarians could support some taxation, so long as the money raised is used to protect everyone's property rights, without discrimination or favoritism.

Can the libertarian justifiy laws that prohibit one person from imposing the risk of harm on others? E.g., requiring all drivers to have their cars inspected for safety.

If so, why couldn't we justify the prohibition of immoral behavior, on the ground that the immoral person, by damaging his own character, imposes the risk of future harm on others. E.g., if there is a causal link between some kinds of immoral behavior (drug use, gambling, pornography) and crimes of force or fraud, it would appear that some moralistic legislation could be justified, even on libertarian grounds.

Procedural Neutralism

Can be interpreted strictly or loosely.

If interpreted strictly, then any controversy among sane adults would block the use of state coercion. This seems self-defeating: even laws against slavery or rape would be invalid.

If interpreted loosely, only controvery among ideally rational people would count. This opens the door again to moralistic legislation, since the defenders of the law could always claim that its opponents are being irrational.

Last updated November 2, 2003
Created by: Robert C. Koons
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