A critique of Mill's harm principle

State University

Spring 2006

Dr. Leo White

The Constitution and Philosophical Thought

Mill’s Harm Principle: part one

 

The assigned reading, an excerpt from J.S. Mill’s On Liberty, argues against the use of coercion to limit the freedom of expression. But it is part of a longer essay that makes a much broader claim about the government’s use of “compulsion and control.” That claim is as follows:

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. 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. His own good, either physical or moral, is not a sufficient warrant.

In this short essay, I will criticize the above claim, which I will call the harm principle. There are two parts to my criticism. The first is that the harm principle, if interpreted in a strong enough manner, gives too narrow a scope to governmental activities inasmuch as it denies that it is appropriate for the government to require citizens to contribute to a common interest. The second criticism is that some laws prohibiting self-harm can be justified.

 

As a background to my first criticism I will note that Mill assumes that all governmental laws can be divided into two different kinds: those prohibiting one from harming others and those prohibiting one from harming oneself. Since he approves of the former and disapproves of the latter, it follows that for Mill, all good laws are laws that prohibit us from harming others. But this understanding of law is too narrow, for it excludes laws that require us to contribute to the public interest. I would argue, contra Mill, that the government compels citizens to act for the common good and that this compulsion is appropriate. For an example of this third kind of law, consider the fact that residents in a state such as Maryland are required to pay taxes that pay for the operation of public colleges and universities. Taxation is certainly a form of compulsion, for few of us would pay this money unless we were required to do so. But this compulsion is not to prevent harm to others: rather, it is to promote others’ well-being. Granted, some taxpayers may go to or send their children to the colleges that they help finance through tax dollars. And the prosperity of those who graduate from college and earn good incomes will ripple throughout the community. But one is required to pay taxes even if one has no hope of benefiting directly or indirectly from the existence of colleges. Why might this requirement be a good thing? I submit that it is because we are responsible for the well-being the community to which we belong. Mill was certainly a compassionate human being, as his writing on the subjection of women attests. And he might personally wish that government would provide for the common interest. But the harm principle articulated by Mill is at odds with that wish. It instead supports a radically individualistic notion of how tax dollars should be spent, one that would make no room for public education, welfare, health care, etc. In fact, consistency would require the adherent to Mill’s harm principle to oppose taxation directed toward the common interest.

 

One may object to my last point by pointing out that Mill is only against laws that compel citizens to act for their own physical or moral well-being. For example, he is against laws that prohibit polygamy: he would be against them even if it could be demonstrated that adult women who enter into these marriages are unhappy in comparison with women who willingly enter monogamous marriages. He is against such compulsion because, in his opinion, prohibiting persons from entering into polygamous marriages always does them greater psychic harm than any harm resulting from willingly entering into polygamous marriages.

 

I would reply to that objection in the following manner: what is principally harmful about these laws is the fact that they constrain our liberty rather than the fact that this constraint prevents self-harm. Requiring us to pay taxes, I would argue likewise constrains our liberty, for it forces us to write a check when we would rather not do so. It would seem that if forcing me to do something for my own good is likely to harm me, then forcing me to do something for the good of others is even more like to harm me.

 

If the above analysis is fair to Mill, then his conception of government is radically defective. For inasmuch as a government cannot operate without laws promoting a common interest, laws directed toward such an end are as basic as laws prohibiting harm to others. Mill’s theory of governance is missing something that is essential to good government.

 

I contradict Mill’s second thesis by proposing that some laws restricting self-regarding actions are good laws. Consider the three following examples of laws restricting economic behavior: the first law puts a limit on how much interest a credit card can charge; the second prescribes a limit on how many hours a person may be required by his employer to work in a week; and the third prohibits non-union employees from negotiating with an employer (when a union has been established). They have in common the fact that they limit the ability of a person to enter into a contract that will end up harming himself. They take into consideration that some members of society are predators, but others are either naïve or in so desperate a situation that they are vulnerable to accept very unfavorable contractual terms. They are all examples of economic paternalism, which I propose can be a good thing. Mill’s theory of governance is opposed to all kinds of paternalism with the exception of laws directed to the protection of children and the education of “savages”(!). Assuming that credit card owners do not fit into these two exceptions, Mill would oppose these instances of economic paternalism on principle. And if such paternalism is good, then Mill’s theory is defective once again

 

Paternalism includes much more than the restriction of economic activity. For example, Ronald Dworkin, who is a proponent of paternalism, has pointed out that laws requiring us to wear seat belts are paternalistic inasmuch as they require us to do something for our own safety. We might offer further examples: laws that require us to wear safety equipment when working in dangerous jobs, laws prohibiting us from taking drugs that cause lasting brain damage, and laws prohibiting us from contracting someone to assist us in committing suicide. They all have in common that they concern how one treats one’s own body. But none of them are purely paternalistic, for in each case, one who violates such laws would create burdens for other member of society or cause them psychic harm. Hence Mill might support these laws if they could be shown to prevent harm to others.

 

One who both accepts the harm principle and agrees that the above-mentioned quasi-paternalistic laws are good is faced with a problem. For once one grants that some actions that seem at first glance to be self-regarding may proscribed on the basis of their other-regarding consequences, then the question becomes “how many actions that seem to be purely self-regarding necessarily involve consequences that are harmful to others?” The larger we deem this class to be, the smaller will be the number of actions to which Mill’s harm principle actually applies. This objection therefore opposes Mill’s second thesis not by contradicting it but rather by marginalizing it, possibly to a very great measure.