The Harm Principle allows for moral or legal interference only under one condition: to prevent harm to others. Actions and beliefs that are purely self-regarding and represent no threat of harm to others should be free from interference.
... the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. 1.9
Since harm is the criterion for establishing the limits of state regulation and the extent of personal freedom, the concept must be clearly defined. In some cases this presents no difficulty. Acts that restrict the movement of others, cause physical injury or lead to loss of property, for instance, are subject to intervention as these consequences are uncontroversial examples of harm.
But not all cases are so clear-cut. Mill himself acknowledges that even purely self-regarding actions can affect others, and it is uncertain at what point ‘affect’ becomes ‘harm’. For example, a person’s religious opinions and right to discuss them should be considered immune from state interference. But expression of these views may well constitute blasphemy for others and in this sense may cause harm. Mill himself distinguishes between causing offence (which does not count as harm) and inciting violence (which is harmful and should be regulated) but the distinction is far from controversial. Causing offence is a special case which will be discussed below, but other questions may also be asked of Mill’s conception of harm: can a person’s character be morally harmed? can harm be done to institutions, traditions or other forms of life? can omission of an action which would benefit others be considered a harm?
Evidently not all actions that affect others should be considered harmful. There appears to be some further consideration that allows us to distinguish between actions that do, and actions that do not, contravene the Harm Principle.
Acts, of whatever kind, which, without justifiable cause, do harm to others, may be, and in the more important cases absolutely require to be, controlled by the unfavourable sentiments, and, when needful, by the active interference of mankind. The liberty of the individual must be thus far limited; he must not make himself a nuisance to other people. 3.1
The key phrase here is ‘without justifiable cause’: with such a cause, it appears, even harmful acts are acceptable and should be free from interference. To understand what ‘justifiable’ harm might be, consider the following actions. If I punch someone when angry, steal their phone or slander them publicly – these are uncontroversial examples of harm that cannot be justified. But what if I turn someone down for a job? or do not invite them to a dinner party? or refuse to lend them my motorbike? Most people would consider that any hurt caused by these actions is justifiable, and that my conduct – though ‘harmful’ – is acceptable. I am ‘within my rights’ to employ, invite and lend to whomever I wish.
When... a person is led to violate a distinct and assignable obligation to any other person or persons, the case is taken out of the self-regarding class, and becomes amenable to moral disapprobation in the proper sense of the term. 4.10
What is required for conduct to be subject to disapproval is that a right (an ‘assignable obligation’) be violated. Without this further qualification, the Harm Principle would have too broad a jurisdiction and would condemn actions that, although ‘harmful’, are perfectly legitimate. Mill gives an expanded list of the types of action that he considers harmful:
Encroachment on their rights; infliction on them of any loss or damage not justified by his own rights; falsehood or duplicity in dealing with them; unfair or ungenerous use of advantages over them; even selfish abstinence from defending them against injury – these are fit objects of moral reprobation, and, in grave cases, of moral retribution and punishment. 4.6
The notion of rights is at the heart of Mill’s conception of harm. For an action to count as harmful (in the sense required by the Harm Principle) it must affect others in the relevant manner: that is, it must prejudice their interests, specifically those interests that ought to be considered as rights. Mill also uses the term ‘duty’ to express a similar thought:
... they are only a subject of moral reprobation when they involve a breach of duty to others. 4.6
These notions of rights and duty offer an answer to the question of whether omission of an action can be considered harmful. The answer is yes: if the omitted action is a duty, the state does, in fact, have a right to compel someone to perform it:
There are also many positive acts for the benefit of others, which he may rightfully be compelled to perform; such as, to give evidence in a court of justice; to bear his fair share in the common defence, or in any other joint work necessary to the interest of the society of which he enjoys the protection; and to perform certain acts of individual beneficence, such as saving a fellow-creature’s life, or interposing to protect the defenceless against ill-usage, things which whenever it is obviously a man’s duty to do, he may rightfully be made responsible to society for not doing. 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. 1.11
In these instances an individual can be compelled to act appropriately as not doing so is prejudicial to the interests of others. Mill is rightly cautious here, however, as the notion of duty can easily be abused and compulsion of any sort limits the liberty of the individual (he returns to this question of an individual’s obligation to the state in Chapter Four). The justification in each case, therefore, is utilitarian and Mill is happy to accept that in some circumstances compelling individuals to fulfil such duties may be wrong:
... because the attempt to exercise control would produce other evils, greater than those which it would prevent. 1.11
Ultimately ‘acts that cause harm’ is a broader class than ‘acts that should be regulated by society’. In other words, harm is a necessary but not sufficient condition for the state to interfere with individual liberty. By acknowledging that harm is not a sufficient condition for the state to intervene, Mill accepts that in some instances of harm, interference is still not justified:
... it must by no means be supposed, because damage, or probability of damage, to the interests of others, can alone justify the interference of society, that therefore it always does justify such interference. 5.3
This is in accord with the narrower definition of harm as prejudicial only to interests that are considered rights. There are several situations in which significant harm may legitimately be caused by an act:
In many cases, an individual, in pursuing a legitimate object, necessarily and therefore legitimately causes pain or loss to others, or intercepts a good which they had a reasonable hope of obtaining. Such oppositions of interest between individuals often arise from bad social institutions, but are unavoidable while those institutions last; and some would be unavoidable under any institutions. Whoever succeeds in an overcrowded profession, or in a competitive examination; whoever is preferred to another in any contest for an object which both desire, reaps benefit from the loss of others, from their wasted exertion and their disappointment. But it is, by common admission, better for the general interest of mankind, that persons should pursue their objects undeterred by this sort of consequences. 5.3
Mill’s point here is that sometimes harm is unavoidable, particularly in a competitive context (examinations, the job market, etc). These contexts could be outlawed by the state to prevent such harm arising, but it is ‘better for the general interest of mankind’ to allow them to exist. The justification is, of course, utilitarian: there is more utility in letting such competition exist than in removing it. Mill then goes on to restate this point in the language of rights:
In other words, society admits no rights, either legal or moral, in the disappointed competitors, to immunity from this kind of suffering; and feels called on to interfere, only when means of success have been employed which it is contrary to the general interest to permit – namely, fraud or treachery, and force. 5.3
For harm to be a condition of state intervention it must be the sort of harm that contravenes a recognised right. Individuals have a right not to be the victims of fraud, treachery or force; but they have no right not to be disappointed in an examination or a job application.
Clearly, then, harm is not a sufficient condition for the government to restrict the freedom of individuals. However, when Mill writes that ‘... damage, or probability of damage, to the interests of others, can alone justify the interference of society’ he seems to be acknowledging that harm, in the restricted sense, is at least a necessary condition for interference. In other words, if and only if harm occurs, then society may intervene. But this appears to contradict the utilitarian basis of Mill’s claim. For a utilitarian, if intervention contributes to greater utility, it must be justified – whether or not harm has occurred. Some commentators have therefore claimed that harm should not even be a necessary condition for interference.
Some actions which affect or even injure other people are not considered harmful because they do not infringe upon the rights of others. In utilitarian terms, the cost of injury does not outweigh the benefits of freedom.
... with regard to the merely contingent, or, as it may be called, constructive injury which a person causes to society, by conduct which neither violates any specific duty to the public, nor occasions perceptible hurt to any assignable individual except himself; the inconvenience is one which society can afford to bear, for the sake of the greater good of human freedom. 4.11
One type of injury in this class is offence, which Mill is careful to point out does not come under his definition of harm.
... there is no parity between the feeling of a person for his own opinion, and the feeling of another who is offended at his holding it; no more than between the desire of a thief to take a purse, and the desire of the right owner to keep it. 4.12
A person’s freedom to believe and express whatever they wish cannot be curtailed by another person’s taking offence at those beliefs. In the end, Mill claims, being offended does not prejudice our interests in any significant way or limit our capacity to live as we wish. On the other hand, banning potentially offensive behaviour would indeed limit people’s freedom. It is the ban on offensive behaviour that is harmful, not the behaviour itself.
Offence is also a very difficult injury to police. Almost everyone finds something offensive: if the Harm Principle were to require everything offensive to be outlawed, it would in effect allow nothing at all. Moreover, many occasions of offence seem to be trivial or bigoted, and there is no way of deciding objectively exactly what, if anything, is truly offensive. With no clear criterion, the state should not attempt to regulate offensive behaviour at all.
One frequent cause of offence is religious difference. People’s religious beliefs are grounded in profound commitment to certain ideals, and as a result contradiction or belittling of those ideals can cut deeply. An example Mill uses in On Liberty is that of a mostly Muslim society that elects to criminalise the eating of pork on the grounds of ‘instinctive antipathy’. For Mill this law would represent a clear infringement of the Harm Principle, since a non-Muslim eating meat, despite the offence caused, does not represent any significant harm or damage to others. Most people would agree that such a law would be misguided, and if so:
The only tenable ground of condemnation would be, that with the personal tastes and self-regarding concerns of individuals the public has no business to interfere. 4.14
Although Mill is quite clear – and controversial – in his insistence that offence is not a relevant type of harm to justify intervention, he later agrees with prohibiting in public some acts that are allowed in private:
... 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 thus within the category of offences against others may rightfully be prohibited. 5.7
Mill is talking here about ‘offences against decency’ – a frequently cited example is consensual sex which is acceptable when taking place in private, but becomes offensive when performed in public.
In fact, a modern reading of the Harm Principle would conclude that public sex, discomfiting as it may be, does not constitute the sort of harm that would justify state intervention and should be tolerated as an inconvenience ‘which society can afford to bear’. Further, it is possible to argue that such adventures should be encouraged as an ‘experiment in living’ (3.1), something of which Mill himself approves. It appears that Mill is being less than consistent here – indeed, Jeremy Waldron describes this passage as ‘the most difficult to reconcile with the overall tendency of Mill’s argument’.
Several thinkers have objected to this interpretation and, like Mill, feel that such ‘violations of good manners’ should be regulated. Some have tried to defend the view that public indecency does, in fact, constitute perceptible hurt and is therefore a legitimate subject of regulation: but it seems impossible to square this with Mill’s own explicit rejection of offence as a type of harm. Another approach is to argue that public indecency lessens utility and the general happiness of society, which would provide a utilitarian justification for intervention. However, on this point Mill’s attitude smacks more of the Victorian moralist than the enlightened utilitarian.
It should be noted that the philosopher Joel Feinberg has argued for a supplementary Offence Principle which would allow governments to prohibit behaviour that might cause serious offence to others. This would legitimise interference in areas that Mill’s Harm Principle does not allow.