Is And Should The "Harm Principle" Really Be The “Only Purpose” Of Law?

As a very general framework for justifying law, John Stuart Mill’s famous principle in his 1869 work On Liberty 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” is superficially appealing. The reason this is appealing is that it leaves individual actions within the realm of individual responsibility, with only public actions that cause harm being those which are a matter of legislative public responsibility. This principle works to keep government from becoming overly paternalistic and intrusive in the lives of its citizens.

In general this is an agreeable starting point upon which a legal framework should be based. First and foremost, the law should prevent one person from harming another. What I wonder is whether this “harm principle” alone can truly suffice as the only basis for law? What is perhaps bothersome is that Mill states that the “sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection.” The right of self-protection is the moral right of the highest order, and therefore should serve as the first and loftiest moral basis for laws. But is it really “the only purpose” and “the sole end”? Is it the only factor to be taken into consideration when forming law, or must other values besides just self-protection be a part of the moral equation that results in just laws?

The greatest issue is whether paternalism, in the sense of protecting a person from harming himself, has any place in the law as well. Perhaps it is a lesser value, and therefore in order to ban one from harming himself there should be a requirement that the harm be of a more grievous kind. The threat of overuse of paternalistic justifications allowing for laws resulting in a “nanny state” or tyrannical intrusions on individual liberty should of course be kept in mind. In fact, it is precisely why a higher burden should be necessary for paternalistic laws. But does this mean that just because the burden might be heavier, it can never be met?

On the one hand there are paternalistic laws such as motorcycle helmet laws, seat belt laws, laws forbidding swimming without a lifeguard, or perhaps prohibitions of certain recreational drugs, that might not meet the necessary standard for a paternalistic law because the theory of personal assumption of risk renders the paternalistic justifications for the laws too weak.

However, should laws against dueling, laws against suicide or voluntary euthanasia, murder statutes (insofar as consent of the victim is not a defense), be cast aside because the person or persons involved have consented and therefore no one is being “harmed” “against his will”? I think not. In some cases, the value protected is of such a high order that the law must exist to protect people from themselves. In the examples just listed, the protection of life is a sufficiently strong value that it can compete with self-protection as a justification for law. It is a value of such a high magnitude that consent of the parties alone (which according to Mill does not qualify it as a “harm”) should not justify its legality. What I think this demonstrates is that other values besides self-protection might serve as an adequate justification for law.

Perhaps one might argue that this same logic about the value of protecting life just used should apply to seat belt laws and the like as well. Such an argument could and is credibly made. But is there reason to distinguish between a seat belt law and a suicide law? Perhaps the reason is that assumption of risk is a countering theory in those seat belt type circumstances as life is not directly and immediately at play, but rather it is just an increase of the risk to life that is at play. Therefore an assumption of that risk is sufficient to quell the justification of protecting life. As a result, it might not meet the higher burden of a competing value needed to justify paternalistic legislation in the same way a law against suicide does. No risk, however, is assumed in suicide, death is being directly chosen.

Liberals tend to think that they are today the ones that stand alongside the Millsean "harm principle." They are the ones that claim to, for example, want government "out of the bedroom" and pretend to be making a "harm principle" argument at least at times when it comes to social issues. Do not be fooled. They are no more of a Millsean than conservatives. I would ask those on the left that are inclined to believe they are adherents to the Mill's "harm principle" one question: Should something like Social Security contributions be abolished because they are coercive laws that exist despite the person involved having committed no harm to any other? If the answer to that is yes, then a competing value besides self-protection (namely “welfare”) has just been introduced, and you must recognize that Mill is not your philosopher at all. Both sides of the ideological spectrum have their competing interests that in fact render Mill an overly simplistic formulation for the basis of law.

Another question even within application of the "harm principle" becomes how broadly you define "harm"? Must it be direct or personal harm only? Mill suggests that it be defined narrowly by showing “perceptible injury” to a “concrete individual.” Intangible harm to society at large should not be legally regulated. The reason for arguing that it should be defined narrowly is that otherwise all sorts of laws can be passed under the rubric of preventing some wider harm to society which could lead to trampling individual liberty. But at the same time, it is important to note that Mill himself introduces competing values other than direct tangible harm caused without consent despite having declared this the "only purpose" for law. When it comes to public indecency, Mill says that legally proscribing such behavior should be allowed not for true "self-protection" but for the protection of societal "good manners" and to prevent causing "offense to others." Mill writes that “there are many acts which, being directly injurious only to the agents themselves, ought not to be legally interdicted, but which, if done publicly, are a violation of good manners, and coming within the category of offenses against others, may rightly be prohibited. Of this kind are offenses against decency; on which it is unnecessary to dwell,... the objection to publicity being equally strong in the case of many actions not in themselves condemnable, nor supposed to be.” So even Mill has no problem including an alternative value of offense to others and good manners even though it does not strictly meet his definition of a harmful act that is condemnable in and of itself as causing “perceptible injury” to a “concrete individual.” A true purist in the "harm principle," on the other hand, might allow public acts of all kinds so long as these acts do not directly cause perceptible injury reasoning that causing others to be "offended" is not enough. Even Mills, though he may not admit it, has some exceptions to the Millsean "harm principle" proving that it actually should not be the only principle guiding the making of law.

In summation, Mills is a really great starting point, but cannot also be the ending point of all justifications for laws. There are values besides “self-protection,” which if important enough, can serve as the justification for laws. What Mills leads me to think is that if a law is paternalistic at its core, it does not mean it cannot be enacted, but only that that there is good reason to demand a higher standard to justify its inclusion among the laws which are more easily justified because they cause harm to other members of society without their consent. Tweet