I’m working on a paper for a philosophy of law seminar which has focused on John Stuart Mill. Specifically, a central topic of discussion has been Mill’s harm principle. I’m starting to work on a paper on this (specific topic to be determined), and I figured I’d try writing a little bit here to clarify my thoughts and develop some ideas.
In On Liberty, Mill offers the follow formulation of the harm principle: “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. His own good, either physical or moral, is not a sufficient warrant” (9). An individual can only be interfered with in order to keep harms from befalling others. What exactly constitutes a harm is extremely complicated and something that I’ll address a bit further down (Mill is not at all specific about the definition of “harm”). But the main idea here is that a harm must be present in order for interference in another person’s life to be permissible; interference cannot be justified paternalistically (for a person’s own good) moralistically (for the sake of making somebody live an ethically good life), on the grounds that it would benefit others, on the grounds that it would prevent others from being offended, or on any other grounds aside from the prevention or reduction of harm. The harm principle is in accord with the basic liberal intuition that people should be free to do what they want as long as they do not interfere with other people’s freedom to do what they want.
Mill writes that his harm principle is intended to limit “the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties or the moral coercion of public opinion” (9). The harm principle is often understood as a limit on state action, and it certainly is that; it distinguishes between cases where it is permissible for the government to interfere in the life of an individual person, and when it is not. However, as the above quote makes clear, the harm principle is not exclusively concerned with the state. Mill took seriously the power of public opinion to influence and constrain an individual’s life, and the harm principle reflects this by also applying to public opinion. As other passages in On Liberty show, Mill does not intend the harm principle to limit state action and public opinion in the same way; social disapproval, for example, has a vital role to play in some instances in which an individual acts immorally but does not cause harms sufficient to justify state interference. Unfortunately, Mill is unclear about precisely how the harm principle limits public opinion as opposed to state action, and he can thus be interpreted in a variety of ways.
Joel Feinberg has written extensively on the harm principle and provides a useful analysis and refinement of it. Feinberg gives the following definition of the harm principle: “It is always a good reason in support of penal legislation that it would probably be effective in preventing (eliminating, reducing) harm to persons other than the actor (the one prohibited from acting) and there is probably no other means that is equally effective at no greater cost to other values” (Feinberg, Harm to Others, 26). Note that Feinberg, using this definition, is considering the harm principle exclusively as it applies to state action (“penal legislation”), and not public opinion. The fact that a harm is being committed or is merely a “good reason” for state interference. It is not enough to justify state interference all by itself. The state can only act in response to prevent harm if it is likely to be effective in doing so and if state action passes a value cost-benefit test for the particular case. Thus, the presence of a harm is enough to establish that the state may act, but not enough to make it so that the state must act, or should act. Put another way, state action is never justified if there is no harm present, while state action is sometimes justified if there is a harm present.
So what makes something a harm? Feinberg writes, “only setbacks of interests that are wrongs, and wrongs that are setbacks to interest, are to count as harms in the appropriate sense” (36). A harm is a wrongful setback of interests. One must therefore show two things to be the case in order to show that an action is harmful: (1) that the action is wrongful, and (2) that the result of the action is the setting back of an individual’s interests. Now, of course, we must clarify what the meaning is of each of these two conditions. What makes something wrongful? What counts as a setback of interests? Fortunately, once again, Feinberg has done a great deal of this conceptual work.
“One’s interests…” according to Feinberg, “taken as a miscellaneous collection, consist of all those things in which one has a stake, whereas one’s interest in the singular, one’s personal interest or self-interest, consists in the harmonious advancement of all one’s interests in the plural… [they] are distinguishable components of a person’s well-being: he flourishes or languishes as they flourish or languish” (34). There are a range of things, from passing wants (desiring a mug of hot chocolate on a cold winter day) to comprehensive life goals (happiness), that one can conceive of as being in a person’s interest. Feinberg excludes the extremes of this range from the set of interests that is relevant for determining harms. A person doesn’t have a stake in the case involving the hot chocolate, unless the hot chocolate is instrumental to an end which is connected to a goal in the advancement of which one has a stake. As for comprehensive life goals, saying that we have an interest in our happiness is similar to saying that we have “an interest in our interest,” which is trivial (56).
Relevant interests can ultimately be divided into three categories: (1) Instrumental wants, which are passing wants that are connected to other more important and stable goals; (2) welfare interests, which involve the bare minimum necessary to live a physically and mentally healthy life; and (3) focal aims, which are long-term life projects like excelling in one’s chosen field, promoting a cause, or raising a family (56-60). Of these three categories, it is mainly welfare interests that are legally protectable. The law is generally effective at preventing bodily harm, protecting people from false imprisonment, and securing people’s material resources by prohibiting theft and fraud. These all involve welfare interests. Focal aims are generally indirectly protected by law: if Tina wants to become the world’s most famous puppeteer, the law protects the welfare interests the fulfillment of which are necessary for her to pursue this goal. But the law cannot stop a more talented puppeteer from outcompeting Tina, since would be impossible to do so without unacceptably impinging on the more talented puppeteer’s liberty (62).
Next, I’ll consider what makes a setback of interests wrongful.