NO HARM; NO FOUL:
In Search of a Principle Defense of Freedom
For those of us who love this country, one of its greatest virtues, we often think, is that it really is the land of the free. To be sure, we sometimes describe democratic rule as the primary political value to which we subscribe. But de Tocqueville was surely right to warn us against the tyranny of the majority. Democratically elected governments are capable of acting very badly indeed. In many middle-eastern countries, the so-called Arab “spring,” a spring that included the occasional much-celebrated election, turned very quickly into a nightmarish winter.
The framers of our constitution understood all of this. They tried to insure that the U.S. was founded on principles dedicated to the importance of freedom. But there is also an ongoing debate about which sorts of freedoms we ought to protect and which we ought to be prepared to sacrifice for what some will take to be greater goods like security and prosperity.
In today’s talk I’m going to critically discuss John Stuart Mill’s famous attempt in On Liberty to defend a fundamental principle that will help define the conditions under which we may use force to exercise control over another. On Liberty was rhetorically powerful and influential. For many it captures a central idea underlying not only liberal but even libertarian political thought. But as is true of many philosophical classics, superficial clarity and power disguises underlying complexity. We’ll discover internal tension within Mill’s own thought, tension that should lead us to wonder about the underlying structure of Mill’s approach to defending freedom.
I’ve just described Mill as one of the most famous defenders of freedom. But that claim is actually a bit misleading. Early in On Liberty Mill makes clear that his main concern is the way in which we approachissues concerning freedom. He goes on to suggest that in dealing with controversies concerning liberty
one side is at present as often wrong as the other; the interference of government is, with about equal frequency, improperly invoked and improperly condemned.
Our problem, Mill argues, is that we need a principled way of deciding when people should be free to do as they please. And inOn Liberty, after some rhetorical flourishes, he suggests thevery principle that he thinks will do the trick:
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 principle is immediately restated in the form that gave rise to its now common label—The Harm Principle:
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. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise or even right.
The basic idea behind the principle is intuitive and compelling. We often appeal to something like it when we expect others to mind their own business. If we really want to live in a society that respects freedom we should leave a person alone as long as that person is not hurting someone else against that person’s will. But in philosophy, as in life, the devil is in the details. To evaluate the principle we need a careful interpretation of what constitutes being harmed, and an equally careful interpretation of the circumstances under which a given individual can be said to be causally responsible for a given harm.
Before addressing these two questions, however, it is crucial to note that the harm principle, even if plausible, will not live up to its initial billing. Mill seemed to be looking for a principle that we could use to decide controversies over whether someone should be free to act as he or she chooses. But the harm principle clearly states only a necessary condition for legitimate interference with the freedom of another; it does not state a sufficient condition for correctly engaging in such interference. The principle tells us that we must not interfere with someone’s freedom if that person is not harming another (against the other’s will), but it doesn’t tell us that we always, or even usually, should act so as to prevent such harm when it occurs. If there is any doubt as to whether Mill himself understands his principle that way, it is removed unequivocally when Mill says late in the book that “it must by no means be supposed, because damage or probability of damage to the interests of others can alone justify theinterference of society, that therefore it always does justify such interference.”
So we are clearly going to need to rely on other principles before we act so as to restrict freedom. As we’ll see towards the end of this talk, Mill does have another principle, but its availability makes the role of the Harm Principle in On Libertya bit mysterious.
So how did Mill himself want his Harm Principle understood. He provides clues. Shortly after introducing the principle, for example, he makes clear that there are circumstances under which we might not only legitimately force a person to refrain from acting so as to produce harm, but also legitimately force a person to benefit another (act so as to prevent harm). He immediately emphasizes, albeit cryptically, that the latter should be the exception rather than the rule.
A person may cause evil to others not only by his actions but by his inaction, and in either case he is justly accountable to them for the injury. The latter case it is true, requires a much more cautious exercise of compulsion than the former. To make someone answerable for doing evil is the rule; to make him answerable for not preventing evil is, comparatively speaking, the exception.
As you might already anticipate, this admission that both action and inaction can be subject to legitimate regulation will pose no end of difficulty for Mill trying to make use of his harm principle.
There is another term that only rarely makes its appearance in Mill’s discussion, but is critical for any charitable interpretation of Mill. You might recall that in a passage quoted earlier Mill refers not just to an action’s causing harm to another, but also to an action’s involving the probability of harm to another,as potentially justifying regulation of the action in question. That seems sensible enough, but it won’t be hard to force a defender of the harm principle to admit that one can legitimately regulate actions that might produce harm even when the probability is rather low.
Consider for example those parts of the world where people routinely celebrate such events as soccer victories by firing weapons in the air. We wouldn’t allow such behavior here, and with good reason. Bullets that go up come down, and it is a sad fact that this sort of celebration takes its toll on both life and property. Why would we want to risk needlessly this sort of harm for the sake of the pleasure revelers might get from their display of fire power? Or take a more familiar sort of example. Most of us are OK with laws prohibiting people from driving a car under the influence of alcohol or behavior-altering drugs. Though it is probably not a good idea to advertise this fact, it is almost certainly true that the probability of someone just over the legal limit hurting another is relatively small. But the reasonable consensus is surely that we don’t want to put up with this needless increase in the probability of damage to life and property. A key term in the discussion of these examples is the word “needless.” We put up with increases in the probability of harm to others all of the time. Allowing people to drive cars increases the probability of harm to pedestrians. Allowing planes to fly overhead increases, however slightly, the probability of a plane’s crashing down on our heads. But we think that, all things considered, we ought to put up with those increases in the probability of harm. And Mill is, or should be, fine with all of this, for as we emphasized above, the harm principle doesn’t tell us that we should stop all behavior that involves harm, probability of harm, or (now we are also including) possibility of harm. The only point is that any plausible interpretation of the harm principle would state the necessary condition for legitimate regulation of behavior in terms of the action (or failure to act) increasing (by however slight an amount) the probability of harm to others (against their will).
The above comments all focus on how a plausible harm principle should understand the relevant connection between actionsand harm in order for the act in question to lose the protection of the harm principle(and unless I indicate otherwise I’m including failure to act as a kind of “action”). But there are also a host of questions concerning the relevant concept of harm. So physical injury is obviously going to make the list. When you gratuitously stick a knife in my chest, we surely want to count you as harming me.
We can also obviously injure people by damagin their property. So if, for no good reason, I burn down your house, vandalize your car, break your computer, and so on, we are going to want to include such behavior as harmful in the sense relevant to deciding whether that behavior should be protected by the harm principle. Property damage can be subtle, however, and often results indirectly from the psychological effects actions have on others. So let’s turn to that vexing issue. Shall we include as harm (relative to a baseline) such factors as psychological stress, fear, aesthetic revulsion, offense, and so on.
In discussing this question let’s distinguish the question of how Mill wanted us to understand the notion of harm from the question of how we might most plausibly construe a harm principle. So, did Mill want to count the fact that someone finds certain behavior distasteful or repugnantas an instance of that person’s being harmed by the relevant behavior? He sent mixed signals. Muslims who are disgusted by the idea of someone’s eating pork, Mill seems to suggest, are not harmed by those who eat pork, at least in the sense of harm relevant to issues concerning the application of the harm principle. Similarly, he indicates no sympathy for Catholics who claim to be “harmed” due to the emotional distress they feel at others practicing religions other than Catholicism. On the other hand, almost as an afterthought, Mill endorses laws prohibiting acts of public indecency. With respect to this last, perhaps the critical emphasis is on acts that are public. And we’ll talk more about the private/public distinction in a bit. But before we do, let’s explore in more detail the question of whether one can be harmed by someone’s behavior in virtue of the psychological effects that behavior has.
So think about each of the following:
1)You threaten me with violence creating a reasonable fear that you might actually do what you threaten to do.
2)You are my neighbor—the neighbor from hell. You paint the exterior of your house purple with diagonal orange stripes;
You then add to your front lawn realistic replicas of severed animal heads stuck on stakes and spurting water dyed to look like blood;
Finally, you add to the ambience non-stop golden hits from old Pat Boone albums blaring all day long.
3)You and your friends are members of a neo-Nazi party marching in a heavily Jewish neighborhood of Chicago where some of the last survivors of the holocaust still live.[1]
4)You are an avid golfer, andin the heat of an Iowa summer enjoy playing without a shirt. You are not exactly Adonis.
5)You are an author (film maker, television personality) who publishes or produces hate-filled diatribes against one societal sub-group after another.
6)You don’t bathe and when you pass people on the street (or sit on a bus or train) you make others feel like gagging
7)You pack your own lunch that you proceed to eat in your workplace’s common room. It consists of live cockroaches and worms.
The list, of course can go on and on. Some of the items on the list fall into the category of what Joel Feinberg describes not as harmful behavior but as offensive behavior (behavior that is offensive to normal aesthetic sensibility). But whatever we call it, we need to decide whether the behaviors in question might be legitimately prohibited.
How are we going to sort all of this out? Before we try, we would be wise to note that one cannot so easily disentangle questions of offensive behavior from property damage. Even if my neighbors stopped their attack on my aesthetic sensibility with the garish purple and orange painting of their house, they will probably have damaged significantly the resale value of my house. So one can damage someone’s property more or less directly, but also indirectly by doing something with one’s property that others living nearby find repugnant or distasteful.
Set that problem aside for the moment. If we allow that people can be harmed by behavior the mere knowledge of which upsets them, then even if we accept the harm principle, we might find it utterly useless as a principle designed to adjudicate controversial cases that arise concerning freedom. A case is controversial, after all, precisely because at least some people care whether or not the behavior is regulated. And if some people want society to use its resources to stop me from behaving in a certain way, it is a safe bet that most of those people will be upset if they don’t get their way. And if my upsetting someone is a form of harming them, then even if we accept the harm principle, I won’t be able to use it to defend my liberty in the relevant case. Repeating what is now a refrain, it doesn’t follow that I won’t be able to argue plausibly that I should be left alone—the harm principle states only a necessary, not a sufficient condition for the state’s legitimately interfering with my freedom. But I won’t be able to use the harm principle to defend the cause of freedom if we get too promiscuous with the concept of what counts as producing harm.
If we want the harm principle to be an effective weapon in the arsenal of those defending the cause of freedom, then, we had better think long and hard before we allow that offensive behavior counts as harmful behavior. But even after we think long and hard, how are we going to avoid the conclusion that there are circumstances in which we can prevent others from behaving in certain ways, but where the sole reason we have for regulating the behavior is its psychological effects? Neither you nor I want to be subjected to music next door that we find distasteful. I don’t want to see realistic models of severed animal heads spurting fake blood as I drive home from a long day at work. And I don’t want to be subjected to the disgusting odors of those who refuse to engage in minimal hygiene.
As we noted earlier, Mill himself did make a point of distinguishing offensive behavior done publicly from that same behavior done in the privacy of one’s home. And whatever Mill was trying to do with the distinction, it is surely a distinction worth exploring for anyone trying to find a plausible interpretation of harm relevant to developing an effective harm principle. We could suggest that we won’t count as harm the disgust or distaste people feel from the mere knowledge (or belief) that others are acting in a certain way. But we will count as harmful that same offensive behavior if it is done in publicly owned space or if it “creeps” into my own privately owned space. So take the relatively easy case of the neighbor playing non-stop music that I don’t want to hear. We can surely accuse that neighbor of “invading” my property. It is not a case of trespass as it is usually understood, but the neighbor has unleashed sound waves from which I cannot protect myself without considerable expense. And, of course, that is precisely why there are ordinances almost everywhere that will allow the police to force people to respect our “privacy” from unusually loud or boisterous parties. Logically, it isn’t that hard to move from sound waves to light waves. The hideous way in which you decorate your property directly affects what I am virtually forced to see as I drive to my house. I can hardly be expected to close my eyes as I aim for my garage and hope for the best. I could build a fence high enough to block everything you have done to your house, but fences that high are very expensive, and they destroy views that one might reasonably want to keep unobstructed.
The above examples concern intrusion by others into my own privately owned property. But given the way our society is structured, we also have jointly owned “public” space. We need procedures for making decisions concerning what can and cannot be done on the property we own collectively. Given the shape I am in now, I guess I can sympathize with those who don’t want to see me without a shirt on the local public golf course. All of this would be completely contingent on the “collective” attitudes and dispositions that causally affect states like fear, disgust, contempt, revulsion, and the like. But we might be on the way to finding a compromise that still has a healthy respect for the freedom we want people to have to do as they please in the privacy of their own homes, and the restrictions we might want to place on those who “inflict” their behavior on others, either by “intruding” on our private property, or by acting in ways that we collectively decide to prohibit in jointly owned space.